A  DIGEST 


THE  LAW  OF 


MARITIME  CAPTURES 


AND 


PRIZES. 


BY  HENRY  WHEATON, 


COUNSELLOR  AT  LAW  AN1>  ADVOCATE, 


NEW-YORK : 

IFtJBtlSHED    BY   n.   M.'flEBMUT    &    D.    D.   AUDEV, 
SO.    1   CITr-HOTEt,   BK«ADVrAT. 

Forbes  &  Co.  Printers, 
78  Gold-street. 

1815. 


District  of  J\reyt-York,  ss. 
Bje  ir  hejieiibered,  that  on  the  twentj'-first  day  of  July,  in  the  forti-  -^ 
eth  year  of  the  independence  of  the  United  States  of  America, 
(t.  s  )  Henry  Wheaton  of  said  district,  hath  deposited  in  this  office  the 
title  of  a  book,  the  right  whereof  he  claims  as  proprietor,  in  the 
words  and  figures  following,  to  wit : 
"  A  Digest  of  the  Law  of  Maritime  Captures  and  Prizes.'*    By  Henry 
Wheaton,  Counsellor  at  Law  and  Advocate. 

In  conformity  to  the  Act  of  the  Congress  of  the  United  States,  entitled 
"  An  Act  for  the  encocragemcnt  of  Learning,  by  securing  the  copies  of 
Maps,  Charts,  and  Books  to  the  authors  and  proprietors  of  such  copies, 
during  the  time  therein  mentioned.  And  also  to  An  Act,  entitled  "  An 
Act  supplementary  to  An  Act,  evjtitled  An  Act  for  the  encouragement  of 
learning,  by  securing  the  copies  of  maps.  Charts,  and  books  to  the  authors 
and  proprietors  of  such  copies,  during  the  times  therein  mentioned,  and 
extending  the  benefits  thereof  to  the  arts  of  designing,  engraving,  and 
clchisg  historical  and  other  prints. 

THERON  RUDD, 
Clerk  of  th  c  district  of  New  Yort. 


2^- 

it 


PREFACE. 

The  law  of  prize  is  the  most  important  practical 
branch  of  the  law  of  nations.  The  utility  of  a 
work  detailing  its  principles  cannot  be  question- 
ed ;  and  had  the  United  States  continued  a  belli- 
gerent power,  it  would  have  been  indispensably 
necessary  toMhe  statesman,  the  lawyer,  and  the 
merchant.  Nor  is  it  conceived  that  its  import- 
ance is  materially  diminished  by  the  restoration  of 
peace,  since  this  country  cannot,  hereafter,  when 
the  flames  of  war  are  spread  throughout  the  rest 
of  fhe  civilized  w^orld,  hope  for  an  exemption  from 
its  calamities.  But  even  should  it  be  our  unex- 
pected felicity  to  enjoy  the  blessings  of  peace, 
while  other  nations  are  involved  in  vvar,  the  rights 
and  the  duties  of  neutrality  must  always  form  an 
interesting  subject  of  enquiry ;  while  the  princi- 
ples of  Jjublic  law  reflect  a  strong  and  useful 
light  on  many  questions  of  private  and  municipal 
^jurisprudence. 

Ample  materials  for  such  a  work  are  to  be 
found  in  the  learned  writers  upon  the  law  of  na- 
tions, and  in  the  adjudications  of  those  courts 
which  administer  that  law.  If  the  former  are  not 
always  reconcileable  with  each  other,  nor  the  lat- 
ter consistent  with  themselves,  or  capable  of  beine; 


588628*' 


iv  ^    PREFACE, 

harmonized  into  a  system  of  perfect  symmetry  and  "^^ 
order,  the  knowledge  of  both  is  not  the  less  neces- 
sary; and  this  defect  arises  from^  the  imperfect 
sanctions  by  which  this  species  of  law  is  guarded, 

>  The  object  of  our  enquiry  is  not,  What  the  law 
OUGHT  TO  BE ;  but.  What  it  practically  is  :  ^ 
since  it  is  the  latter  which  furnishes,  the  rule  of 
conduct  for  those  who  are  governed  by  it.  As 
public,  unlike  municipal  law,  is  sanctioned  not  by 
the  power  of  a  single  sovereign  or  state,  but  by  a 
resort  to  force  among  independent  sovereigns  or 
states,  it  is  necessarily  imperfect  in  practice,  how- 
ever just  and  beautiful  in  theory.  The  law  of  na-  "*> 
lions  is  adapted  to  a  state  of  war,  and  is  intended 
to  mitigate  its  violence.  It  is,  however,  frequent- 
ly compelled  to  yield  to  the  very  violence  it  was 
designed  to  restrain,  and  becomes  the  victim  of  in- 
novations made  and  enforced  by  the  edicts  of  par- 
ticular states  and  the  adjudications  of  their  tribu- 
nals. JThe  purity  and  simplicity  of  the  primitive 
law  of  nations,  which  is  nothing  more  than  the  law 

^  of  nature  applied  to  the  conduct  of  nations  and 
states,  has  thus  been  corrupted.  It  is  no  longer 
that  law  of  which  Cicero  speaks  witli  idlch  elo- 
quent sublimity.  Iluic  Irgi  nee  ahrogarifas  est, 
nee  derogari  ex  hoc  aliquid  licet,  nectota  ahrogarl 
potest.  Nee  vero  aid  per  scnatnm,  aut  per  populmn  ^ 
solvi  hac  lege  possnmns.  Ncque  est  querendus  expla- 
natory aut  inlerpres  ejus -(dins.  Ncc  erit  alia  lex  JRo- 
maS  alia  Alhcnis ;  alia  nunc,  alia  poslhac :  sed  ct 
omnes  gcntcs,  ct  oinni  tempore,  una  lex,  et  sempiferna, « 


s 


TREFACE.  T 

tl  immor talis  conlinehit ;  unusque  erit  communis  qua- 
si magister  eiimperaior  omnium  deus. 

We  are  therefore  compelled  to  extract  from  a 
mass  of  contradictory  decisions,  usages,  and  con- 
ventions, those  rules  which  are  sanctioned  by  the 
justest  principles  and  the  most  general  practice.' 
This  task  is  not  less  difficult  in  the  law  of  prize 
than  in  any  other  branch  oiiXw  jus  gentium.  The 
author  of  the  present  work  is  not  insensible  of  its 
imperfections,  but  may  claim  souie  indulgence  for 
liis  errors  on  account  of  the  novelty?,  and  difficulty 
of  the  undertaking. 

In  a  digest  of  laws,  nothing  should  be  sacrificed 
to  the  merit  of  originality.  I  hav^  therefore  free- 
ly copied  from  the  elementary  writers  and  the  re- 

^  porters  every  thing  which  seemed  material  to  ray 
design,  and  have  interwoven  such  illustrative  ob- 
servatioRs  as  were  thought  necessary.  In  the  cus- 
tomary or  unwritten  law  of  nations,  to  borrow  an 
analogous  distinction  from  our  municipal  law,  it 
is  frequently  of  as  much  importance  to  give  the 
very  words  of  the  legislator  (for  the  elementary 
writer  or  the  judge,  who  make  law  by  their  autho- 

,v  rity  and  precedents,  must  be  so  considered)  as  it 
.  is  to  transcribe  the  articles  of  a  treaty  or  an  ordi- 
nance, which,  by  the  same  analogy,  form  the  writ- 
ten or  statute  law  of  nations.  And  who  would  pre- 
sume to  correct  and  amend  the  style  of  a  Bynker- 
shoek,  a  Pothier,  a  Scott,  or  a  Marshall  ?  If  a  fas- 
tidious, or  even  a  good  taste,  Avould  condemn  a 
work  constructed  of  such  various  material?,  this  . 


# 


Yl  .    rilEi-'AGE, 

■'•■         'i  -, 

'defect  is  at  least  palliated  by  thebeauty  of  uti-       ' 
lity. 

The  decisions  of  the  present  judge  of  the  high 
court  of  admiralty  in  England  are  entitled  to  great 
respect  and  attention,  and  being  the  adjudications 
^^^  court  of  the  law  of  nations,  are  of  binding  au- 
thority in  that  law,  except  upon  those  questions 
in  regard  to  which  certain  peculiar  doctrines  have 
been  maintained  by  the  British  government. 
Whatever  reason  our  country  may  have  to  com- 
plain of  the  ipjarious  application  of  those  doc- 
trines to  us  as  a  neutral  nation,  it  must  in  candour 
be  admitted  that  on  every  other  head  the  deci-  ^ 
sions  of  Sir  William  Scott  merit  the  highest  con- 
sideration, on  account  of  their  intrinsic  value  and 
the  judicial  eloquence  by  which  they  are  adorned, 
I  have  therefore  made  a  liberal,  though  cautious 
use  of  them,  in  the  compilation  of  tliis  digest.  Had 
that  great  man  followed  the  example  of  his  illus- 
irious  countryman.  Sir  James  Mackintosh,  in  refu- 
singtobe.boundby  the  instructions  and  rescripts  of 
bis  government,  where  they  infringed  the  law  of  na- 
tions and  abridged  the  rights  of  neutrals,  the  au- 
thority of  his  adjudications  would  Ijave  been  enti- 
tled to  still  more  respect  with  foreign  nations  and 
"with  future  ages. 

The  decisions  of  the  prize  comis  of  other  coun- 
tries have  not  been  reported  with  the  same  regu-  'M 
larity  and  correctness  as  those  of  Great  Britain. 
I  have  collected   such  of  them  as  are  to  be  found 
in  the  books  accessible  in  this  country,  and  have  in-      ♦ 


PHEFACE.  "Vll 

serted  Ibem  in  tlieir  appropriate  divisions  of  the 
work.  The  adjudicalions  in  prize  causes  whicji 
had  taken  place  in  the  courts  of  the  United  Sts^teP 
previous  to  the  late  war  with  Great  Britain,  to- 
gether with  the  rich  materials  afforded  by  the  de- 
cisions of  the  supreme  court  during  that  war,  have 
also  been  incorporated.  To  these  f  have  added 
several  cases  determined  in  the  Circuit  Courts  by 
a  learned  judge,  whose  attainments  in  this  branch 
of  law,  it  may  be  said  without  injustice  to  others, 
are  unrivalled  in  a  tribunal  whose  decisions  both 
on  questions  of  municipal  and  public  law  do  so 
^  much  honour  to  the  jurisprudence  of  this  coun- 
try. ■  \-  ' 

In  the  multiplicity  of  elementary  books  with 
which  the  profession  is  inundated,  it  becomes  im- 
portant that  every  distinct  work  should  be  cir- 
cumscribed within  the  narrowest  possible  limits, 
1  have  consequently  aimed  at  conciseness  so  far 
as  was  consistent  with  my  object.  I  have  sk'Hch'- 
ed  a  rude  outline  which  some  abler  hand  must 
hereafter  fill  up  and  adorn.  Qiiamvero  ego  in  all- 
oriivii  scntentiiSy  ac  scriptis  dijudicandis  mihi  sumpst 
liber  lot  em  ;  eandem  sibi  in  ms  sumanf,  omnes  cos  oro, 
atqiie  ohiesior,  quorum  in  manus  ista  vcniant.  Non 
illi  inomptius  me  mcnebunt  erraiitem,  quam  ego  jno^ 
ncntes  sequar,     Grotius  de  T.  B.  ac  P.  Prolegom. 


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ANALYTICAL  INDEX. 


CHAPTER  I. 

Page 
Qf  the  commencement  of  war ;  and  qf  captures  made  before  the  de- 

cl-iration  of  ivar,  or  by  noncommissioned  captors.  .        .     13 

5    1.  Declaration  of  war,  how  far  necessary lb. 

2.  Reprisals '        .         .        .14 

3.  Eiemy's  property,  within  his  territory,  on  the  high  seas,  or  in 
the  territory  of  the  belligerent  state,  liable  to  capture.        .       lb. 

4.  Treaty  exceptions 3t) 

6.  Public  hostilities  assimilated  to  a  war 31 

6.  Seizure  before  the  comnaenceraent  of  hostilities,  or  by  non- 
commissioned captors.  ...         .         .         .         .         .32 

7.  Laiv  of  France,  and  England 33 

8.  Law  of  Franee.     ...» 34 

9.  Retroactive  effect  of  the  declaration  of  war.       ,         .         .  35 
10.  Capture  by  tciiders  attached  to  ships  of  war.           .         .         •  36 
li.  By  vessels  coininissioncd  against  one  power  of  effects  belong- 
ing to  anoL!ier.           ........  37 

12.  By  a  merciiaut  vessel  ia  defending  herself.     .         .         .  •       .   lb. 

13.  Law  of  the  United  States 38 

Property  wronflully  taken  before  a  declaration  of  war.  .         .    39 

CHAPTER  II. 

(y  the  authority  to  make  captures,  and  what  things  are  exempt 

from  capture .        40 

*)    1.  Authority  to  make  war Ib^ 

2.  Res  hostiles.      . lb. 

?..  Things  subject  to  capture 41 

■1.  Title  to  captured  property  in  whom  rested.        .  .lb. 

5.  Public  armed  vessels.     Private  armed  vessels.        .        .        .lb. 
Security  gis'en  by  the  latter 42 

6.  Responsibility  of  owners  and  officers  of  private  armed  vessels 

for  unlairful  arts.  .  43 


i  :  ANALYTICAL    INDEX. 

Page 
)    7.  Law  01  tlifj  Luiteil  States,  prohibiting  the  acceptance  of  for- 
eign commissions 45 

haw  of  France.     Commissions  from  allies  in  the  same  war.     .  47 

8.  Instructions  to  armed  vessels.    ......  lb. 

President's  Instrnotions  of  the  £8th  August,  1812.           .         .  48 

9.  Instructions  extending  the  law  of  nations  to  the  prejudice  of 
neutrals.            .........  50 

W.  Capture  defined. 52 

11.  Capture,  when  consummated lb. 

12.  Seizure  under  an  agreement  with  the  master.    Abandonment 

by  the  captors lb. 

13.  Taking  by  pirates 64 

14.  Capture  in  neutral  territory. lb-. 

15.  Cartels.    . 58 

16.  Vessels  sailing  under  passport,  safe-conduct,  or  license.          .  59 

17.  Licenses  to  trade  with  the  enemy 60 

18.  Fishing  boats. lb, 

CHAPTER  III. 

Of  enemy^s  propei-ty  considered  as  an  object  of  capture.       .        .  62 
§    1.  Capture  of  eneiny  vessels  ,sfid  cargoes,  and  of  enemy  goods 

in  jieutral  vessels; lb. 

2.  Transfer  of  vessels lb. 

3.  British  orders  in  council  and  French  regulations.   .         .        .lb. 

4.  Invalidity  of  these  municipal  ordinances 63 

5.  French  ordinance,  requiring  certain  proofs  of  transfer.    .         .  64 
{').  Sai'"  of  vessels  must  be  absolute  and  unconditional.     .         .  lb. 

7.  Proofs  of  property 65 

8.  Rule  as  to  the  efl'ect  oi'  these  proofs.           ....  66 

9.  Neutral  goods  in  enemy  vessels 67 

10.  Freight  to  captors  on  neutral  goods.  .         .         •■        .         .  70 

11.  Confiscation  of  neutral  vesstis  laden  with  enemy  goods.          .  71 

12.  Enemy  goods  in  neutral  vessels,  whether  liable  to  couHscation.  74 
Conventional  law  of  nations.      .         .         .         .         .         .lb. 

13.  Customary  law  of  nations 78 

14.  Freight  to  the  neutral  carrier  of  enemy's  property.    ,         .  79 

15.  Neutral  and  other  liens  upon  enemy's  property.     .         .         .80 
10.  Transfers  of  enemy's  property  m  fronsjVw.        ...  85 

17.  Contracts  of  purchase,  executory  and  contingent.  .        .        .  60 

18.  SpoliatioD  of  papers 92 


ANALYTICAL    INDEX.  Ill 

Page. 

V  i9.  Visitation  and  search. ♦        .94 

Penalty  for  rcsislancu  to ^''' 

CHAPTER  IV. 

The  properly  nfper.<;ons  rcs'deiit,  or  having  possessions  ia  the  tn-    ■  .  '  4,' 

emy's  territory,  considered  as  an  object  of  capture .       .         .  .,,101 
§    1.  Property  of  persons  domiciled  in  the  enemy's  country.     .         lb. 

2.  Allegiance,  permanent  or  teinporaiy.  ....      lb. 
Domicil  and  citizenship  for  coinnsercial  purposes.     .         .         102 

3.  Commercial  inhabitancy.     .......      lb. 

Domicil,  natural  and  acquired 103 

4.  Time,  the  grand  ingredient  ia  constituting  domicil.      .         .      lb. 

5.  Natural  domicil  c;isily  rsverts 10.'> 

G.  Cases  of  domicil.     Intention  of  returning,  hovv'  far  available.     106 
T.  National  character  of  Europeans  in  the  v:   '     '■  : :  >  d  from  the 

factory  in  ivliich  they  live.     Turkey.                             .  .149 

Iliudostan .         .         .  Ini) 

British  residents  in  Portugal l.'?l 

n.  House  of  trade  in  the  enemy's  co'jutry lb 

CHAPTER   V. 

Of  the  liability  to  capture,  (f  property,  sailii'.g  vruhr  the  Jlag  and 

pass,  or  license  of  the  enemy. 15" 

§    1.  Flag  and  pass,  how  afiecting  the  national  diaracter.  .  Ih. 

2.  Acceptance  from  the  enemy  of  a  l?ceuse  to  trade,  cause  of 
confiscation.     Case  of  the  Julia.  .         »         .         .         .     I'l'J 

3.  Case  of  the  Hiram. .         IG.f 

4.  Case  of  the  Aurora 163 

T).  Exemption  from  captuj-e  by  the  enemy.     Case  of  tlie  LiTFs- 

pool  Packet .170 

CHAPTER  VI. 

Of  neutral  properly,  considered  as  a  legal  object  of  capture.  .         .  IT.'- 

§    1.  Neutral  property  sometim.es  liable  to  capture.  .        .  lb. 

2.  Contraband  of  war lb. 

Distinction  of  things  useful  fur  war,  things  not  so,  and  those  ' 

of  promiscuous  use I7G 

Jin  \ 

'^  «S.     3.  Articles  of  promiscuous  use  destined  id  a  port  of  naval  equip- 
ment.   Right  of  pre-cmptio!J.  ,     i: 


ir  AKAI-YflCAI/    INDEX. 

Page 

§    4.  Skips  built  for  war.        .        .        .         .        .     "   .         .  180 

5.  Confiscation  of  coiitrabanrl.          ......  181 

6.  Vehicle  of  conlraband,  how  far  subject  to  confiscation.     .  lb. 

7.  Penalty  of  confiscatioo,  whether  extending  to  rrturn  voyage.  183 
$.  Transportation  of  military  pHrsoDs  or  despatches.  .  .  184 
9.  Neutral  vessel  carrying  enemy's  forces,  liable  to  confiscation.  lb. 

10."  Carrying  despatches  of  the  enemy.           ....  186 

11.  Trade  to  blockadod  ports 190 

12.  Right  of  blockade  extended  to  total  prohibition  of  neutral 

commerce lb. 

Brit'sh  orders  in  council  arid  French  decrees.       .         .         .  191 

13.  Definition  of  blockade 193 

14.  Notice  of  blockade.    ........  ib. 

15.  Acts  of  violation. 199 

16.  Penalty  for  breach  fef  blockade. 203 

CHAPTER  VI f. 

Of  the  property  of  subjects  rf  the  belligerent  state,  or  its  allies,  en- 
gaged in  trade  rcith  the  enemy,  or  of  subjects  taken  in  viola,' 

tioji  of  a  mvnicipal  law,  considered  as  an  object  tf  capture.  209  . 

§    I.  Intercourse  in  time  of  war  unlawful Ib. 

2.  Maritime  law  of  England  as  to  trading  with  the  enemy.        .  Ib. 

3.  Common  law.           ...                 213 

4.  Law  of  the  United  States 214 

5.  Property  taken   in   trade   with  the  enemy,  couderaued  as 
prize .         .  219 

S.  Attempts  to  evade  the  rule 220 

7.  Trade  to  the  enemy's  country  through  a  neutral  port.      .  Ib- 

8.  Trade  by  a  partnership  in  a  neutral  country.        .        .        .  Ib. 

9.  Apparent  exceptions  to  the  rule 221 

10.  Trade  in  neutralized  commodities.      .         .         ,        .         .  Ib. 

11.  Implied  license ,        .         .  Ib. 

12.  Other  cases  and  authorities  examined.         ....  223 

13.  Trade  with  the  enemy  by  an  ally  in  the  war.    ...  Ib. 

14.  Property  engaged  in  violation  of  municipal  law.  .  225 

15.  Exception  of  Hcutrals 226 

And  enemy  property.         •         •♦ 227 

16.  Slave  trade Ib. 


ANALYTICAL    INDEX. 


CHAPTER  VIII. 


Page 
.    231 

Ransoms lb- 

British  law  prohibiting lb. 


Of  ransoms,  recapture,  and  claims  for  salvage. 


Terms  of  the  contract.    .        .        ,        •        .        .        .  232 

Binds  all  other  cruizers  of  the  same  power  and  its  allies.      .  lb. 

Deviation  from  the  route  prescribed  for  the  ransomed  vessel.  233 

6.  Loss  of  the  ransomed  vessel lb. 

7.  Recapture  on  account  of  deviation.     .        .        .        ,        .  231 

8.  Capture  of  the  ransom  bill  by  the  enemy.         .        .        .  235 

9.  Payment  of  the  ransom,  how  enforced 23G 

10.  Different  species  of  recapture. 237 

il.  From  a  pirate lb. 

12.  From  a  captor  commissioned,  but  not  an  enemy.     .         .  238 
Salvage  for  neutral  property,  when  payable.        .        .        .  239 

13.  Recapture  from  au  enemy.     The  Jus  Pa stlhninii.  .        .  241 
The  law  of  reciprocity 242 

14.  Law  of  France •         .         .         .  244 

15.  Of  Spain, 245 

16.  Of  Portugal 246 

17.  Of  Denmark lb. 

18.  Of  Sweden "lb. 

19.  Of  Great  Britain lb. 

20.  Of  the  United  States 247 

Difference  between  the  law  of  Great  Britain  and  the  United 

States.     Construction  of  the  latter lb, 

21.  Sale  by  the  enemy  to  a  neutral  at  sea lb. 

22.  Recapture  of  merchant  vessels  under  convoy  by  convoying 
ship .249 

23.  Salvage  upon  freight 250 

Freight  upon  cargo  to  recaptured  vessel 251 

24.  Rescue  and  derelict 252 

25.  Rescue lb. 

26.  Derelict.    Donation  by  a  belligerent  to  a  neutral  at  sea.  .  25,4 


CHAPTER  IX, 

Of  the  jurisdiction  and  practice  of  courts  of  prize,        .        .        •  258 

§    1.  Captures  adjudicated  in  the  courts  of  the  captor's  country.  lb. 

^' 2.  Exception  of  captures  within  a  neutral  jurisdiction^      '  .  lb- 


ri  aiTAlytical  index. 

Page 
§    3.  Of  captures  by  armed  vessel';  fliLcd  out  wilbin  neutral  terriy 

tory.'  ...         .         .         /        .         .         .         .     2r)S 

4.  Of  restitution  bj  the  neuti-a!  state  of  the  prdprrty  of  its  own 
subjects  brought  vvitbin  its  jurisdiction lb. 

5.  In  all  other  cases  propeity  continues  in  the  captor   when 

°®       brought  into  neutral  territory.     ......     259 

6.  Extent  of  beliigerent  rights  in  neutral  ports.    .         .         .        260 

7.  Prizes  carried  into  the  port  of  an  ally  an<l;iadjutlicalefJ  in  a 
consular  trilnmal.        .        .  w?,;il.        .      '  I        .        .        .lb. 

8.  Jurisdiction  of  the  prize 'conrts  of  the  captor's  country,     ,         261 

9.  Prizes  carried  into  ports  of  an  ally  or  co-belligerent,  and  con- 
demned in  the  courts  of  the  captor's  country.       .        .        .     lb 

10.  Prizes  carried  into  neutral  ports  and  coadeini>ed  io  the  same     , 
manner.  .         ; ,  lb. 

11.  Constitution  of  priz3  courts 2C6 

267 

.  272 
lb. 

.  274 
lb. 

.  278 
280 

.   '286 


12.  In  France. 

43.  In  Great  Britain. 

14.  In  tlic  United  States.       .         . 

15.  Conclusiveness  of  their  judgments. 

16.  Exception 

17.  Jurisdiction  as  to  properly  taken  on  laud.    . 

18.  Prize  proceedings. 

19.  Distribution  of  prize. 

20.  Joint  capture.    By  public  vessels 287 

By  private  anued^vessels.     By  co-operation  of  land  forces.      28c; 

21.  Rules  of  distribution.  .i 291 

22.  Between  private  armed  vessels  joint  cajitors.    .        .         .        293 

23.  British  regulations  as  to  distribution  to  flag  officers.      .        .    294 

24.  Construction  of  these  regulations.     .         .         ,         .         .         295 

25.  Applied  to  the  law  of  the  United  States 296 

CHAPTER  X. 

C)ftheeffecliofatrealij(^peace^a^questiotSiOfpri~e.      .  299 

§    1.  Suspension  of  hostilities .      lb. 

2.  T'caty  of  peace lb. 

.'}.  Responsibility  for  captures  in  violation  of   .        .        .  .     'M)0 

4.  Limitation  of  captures  as  to  time  and  place.    .  .        301 

5.  Such  limitation  extends  to  recaptures.  .  .  .  302 
C.  Effect  of  peace  upon  titles  of  possession.  ■  ■''•<'' 
'.  Eucmy's  right  suspended  and  revived.  <'• 


# 


Au 


^/Ijt           ^*,                                            ANALYTICAL    INDEX.  VII 

APPENDIX. 

4  Page 

«  «(«=  '    ^°'  '•      Ij^^^ter  from  Sir  William  Scott  and  Sir  J.  Nicholl  to 
■  Mr.  Jay.      .        .        .        .         ...        .         .309 

Report,  &c.  referred  to  iu  the  preceding  letter.          .  317 

No.  n.     President's  Instructions  to  private  armed  vessels.  .        ,  341 
Norm.   Documents  relating  to  the  blockade  of  Martinique  and 

Guadaloupe .  342 

No.  IV.    Correspondence  between  Mr.  Pinkney  and  Marquis 

Wellesley  on  blockades.*       •   ■     •        •        •        •         •    345 

No.  V.     Pvescript  relative  to  the  Berlin  decree.       .         .         .  360 

General  Armstrong's  letter  to  M.  de  Champagny.  .        .  361 
No.  VI.    Rules  of  the  District  Court  for  the  Soutbern  District  of 

New-York  in  prize  causes.         .         .         .         ,         ,  369 

No.  VII.  Form  of  Prize  Libel .        .  378 


* 


•i^  ,f  *» 


V''-' 


.m:   law 


OF 

MARITIME  CAPTURES  AND  PRIZES^- 


CHAPTER  L 


Of  the  commencement  of  war  ;  and  of  captures  ma^e  hefor/^ 
the  declaration  of  xvar^  or  by  non-commissioned  captors* 


^Whether  a  declaration  of  war  to  the  enemy  is  neces" 
sary  to  legalize  hostilities,  is  a  preliminary  question  of  the 
first  importance  in  the  law  of  prize.  It  was  formerly  con- 
sidered  essential,  and  practised.  Such  was  the  usage  of  the 
astient  nations,  which  was  observed  in  modern  Europe  un- 
til the  seventeenth  century.  The  present  custom  is  to  pub- 
lish the  declaration,  or  a  manifesto,  explaining  the  motives 
for  commencing  hostilities,  within  the  territory  of  the  bel- 
ligerent state.  This  publication  is  necessary  for  the  in- 
struction and  direction  of  the  subjects  or  citizens  of  the 
pation  declaring  war,  in  order  to  fix  the  date  of  the  rights 
belonging  to  them  from  the  moment  of  this  declaration,  and 
regarding  certain  effects  which  the  law  of  nations  attributes 
to  a  war  in  form.  Without  such  a  public  declaration  of 
war,  it  would  be  difficult  to  distinguish  in  a  treaty  of  peace, 
those  acts  which  are  to  be  accounted  lawful  effects  of  the 
war,   from   tho$e  which   either  nation   mav  consider  sja 


14  i-AW    OF  CHAP.  I. 

wrongs,  and  for  which  they  may  claim  reparation. (*)  The 
only  difference,  therefore,  between  a  modern  declaration 
of  war  and  that  practised  by  the  Romans  under  their  Fecial 
law,  is,  that  the  former  is  published  within  the  territory  of 
the  belligerent  state,  and  communicated  every  where  by 
means  of  the  invention  of  the  art  of  printing  and  the  estab- 
lishment of  posts,  which  rapidly  diffuse  the  information, 
and  supersede  the  necessity  of  a  particular  notice  to  the 
enemy  by  heralds  as  in  antient  times.  i 

2.  But  though  by  the  modern  customary  law  of  nations, 
a  formal  declaration  of  war  to  the  enemy  is  not  considered 
necessary,  nor  generally  practised  j  letters  of  marque  and 
reprisal  are  issued  as  the  first  step  which  is  generally  taken 
at  the  commencement  of  a  war,  and  which  is  considered  as 
equivalent  to  a  declaration  of  it. 

Reprisals  are  either  general  or  special.  They  are  gene- 
ral^ when  a  sovereign  or  state,  who  have,  or  think  they 
have  received  an  injury  from  another,  issue  orders  to  their 
military  and  naval  officers,  and  deliver  commissions  to 
their  subjects  or  citizens,  to  take  the  persons  and  property 
of  the  subjects  of  the  other  nation,  wherever  they  may  be 
found.(^) 

3.  From  the  momenta  sovereign  or  state  is  at  war  with 
another  nation  they  have  a  right,  strictly  speaking,  to  act 
as  an  enemy  not  only  in  respect  to  the  persons  and  proper- 
ty of  the  enemy  found  in  his  territory  or  on  the  high  seas, 
but  also  with  respect  to  the  enemy's  subjects  and  their 
property  which  may  happen  to  be  found  in  the  territory  of 
the  belligerent  state  at  the  breaking  out  of  the  war.  They 
have  a  right  then,  to  seize  on  the  ships  of  the  enemy  found 

(»)  Vattel,  L.  S.  c.  A.  §  56,  Martens,  L  8.  c.  2.  $  4.  Bimkershoch,  Q. 
S.  P.  L.  1.  c.  2.  Ut  bcllum  Ic^itimum  sit  indictioncm  belli  7ic>i  zicfcri  ni'C?- 
zarium. 

C*)  Dti  Ponceau*t  JSi/nkenhoek,  L.  1.  c.  24.  In  JVotis. 


MARITIME    CAPTURES    AND    PRIZES.  15 

in  their  ports,  and  on  all  their  other  property.(<=)  Even 
sacred  things  are  not  exempt  by  the  law  of  nations  from 
this  general  liability  to  capture  ;  and  there  is  a  remarkable 
observation  of  Cicero  on  this  subject  in  his  fourth  oration 
against  Verres,  that,  Fictory  7nade  all  the  sacr-et>  things  oj 
the  Syracusans  profane.  But  by  the  modern  law  and 
usage  of  nations,  the  temples  of  religion,  public  edificer, 
devoted  to  civil  purposes  only,  and  the  monuments  of  the 
arts  and  repositories  of  science,  are  exempted  from  the 
operations  of  war.  Christianity,  chivalry,  colonization, 
commerce,  and  civilization  in  general,  have  successively 
combined  to  soften  the  extreme  severity  of  these  operations. 
The  generality  of  the  above  mentioned  rule  still  applies, 
however,  to  cases  of  maritime  capture.  Some  late  writers 
have  attempted  to  extend  this  relaxation  to  maritime  war- 
fare, upon  the  groiftid  that  jtrivate  property  is  exempt  from 
spoliation  in  land  wars,  and  therefore  ought  not  to  be  lia- 
ble to  capture  and  confiscation  by  sea.  But  besides  the 
usage  of  considering  such  property,  when  captured  in  cities 
taken  by  storm,  as  booty;  it  is  well  known  that  contribu- 
tions are  levied  upon  territories  occupied  by  a  hostile  army 
in  lieu  of  a  general  confiscation  of  the  property  belonging 
to  the  inhabitants,  and  that  the  object  of  wars  by  land  be- 
ing conquest,  or  the  acquisition  of  territory  to  be  exchangcl^ 
as  an  equivalent  for  the  restoration  of  other  territory  lest, 
the  regard  of  the  victor  for  those  who  are  to  be,  or  have 
been,  his  subjects,  will  naturally  restrain  him  from  the  ex- 
ercise of  his  extreme  rights  in  this  particular  :  whereas  the 
object  of  maritime  wats  is  the  destruction  of  the  enemy's 
commerce  and  navigation,  the  sources  and  sinews  of  his 
naval  power,  which  object  can  only  be  attained  by  the  cap- 
ture and  confiscation  of  pri\'ate  property.  Nor  is  any  no- 
tice of  the  existence  of  the  war  to  the  party  necessary  in 

(c)  Grothii,  de  J.  B.  ac  P  L.3.  c.21.§  9  Puffendorf,  L.  8.  c.  6.  §  19.20. 
Wolf,  Jut,  Gent.  §  1184.  1198.  Martens,  L.  S.  c.  2  §  5,  n>mlTrsI.j''f.; 
q.  J,  Pub.  h.  1.  c  2. 


16  JLAW    OF  CHAP    I. 

order  to  legalize  the  capture  of  his  property  ;  for  it  is  suf- 
ficient that  actual  hostilities  existed  at  the  time  when  the 
capture  was  made,  and  that  those  hostilities  were  authorised 
by  the  proper  authority.  If  no  general  declaration  of  war 
to  the  enemy  be  essential,  no  particular  notice  to  his  sub- 
jects or  citizens  caTi  be  necessary,  to  render  the  capture  of 
their  property  lawful.  The  declaration  is  every  where 
operative  from  its  date  upon  all  the  persons  and  property 
of  the  enemy.  It  operates  everv  where  from  its  date  to 
legalize  captures  precisely  as  a  treaty  of  peace  operates 
from  its  date  (unless  otherwise  provided)  to  annul  them. 
But  in  order  to  induce  the  confiscation  of  enemy*s  proper- 
ty, found  within  the  territory  of  the  belligerent  state  at  the 
declaration  of  war,  some  act  of  the  government,  other  than 
the  declaration  itself  is  essential. 

Previous  to  the  late  war  between  the  United  States  and 
Gieat  Britain,  a  vessel,  owned  by  citizens  of  the  belligerent 
state,  was   chartered  to  a  house  of  trade   in  the  enemy's 
country,  one  of  whom  was  also  a  citizen,  for  the  purpose 
of  carrying  a  cargo  from   Savannah  to  Plymouth.     After 
the  cargo  was  put  on  board,  the  vessel  was  stopped   by  an 
embargo.     It  was   afterwards  agreed  between  the  master 
of  ihc  ship  and  the  agent  of  the  shipper,  that  she  should 
proceed  with  her  cargo  to  New-Bedford  where  her  owner 
resided,  and  there  remain  without  prejudice  to  the  charter 
party.     In  pursuance  of  this   agreement,  the  vessel  pro- 
ceeded to  New- Bedford,  where  she   continued  until  after 
ihe  declaration  of  war  in  1812.     In  the  month  of  October 
or  November  of  that  year,  the  ship  was  unloaded,  and  the 
cargo,  except  a  part  of  it  consisting  of  pine  timber,  was 
ianded.     The  pine  timber  was  floated  up  a  salt  water  creek, 
where,  at  low  tide,  the  ends  of  the  timber  rested  on  the 
aiud,  and  where  it  was  secured  from  floating  out  with  the 
tide,  by  impediments  fastened  in  the  entrance  of  the  creek. 
In  November  the  cargo  was  sold  by  the  agent  of  the  own- 
ers, who  was  a  citizen,  to  the  claimant,  also  a  citizen.     A 


MARITIME    CAPTURES    AND    PRIZES'.  17 

libel  was  aftei-wards  filed  by  the  United  States  Attorney 
for  the  district  against  the  cargo,  as  weli  for  the  United 
States  as  for  and  in  behalf  of  a  noncommissioned  captor 
and  all  other  persons  concerned.  It  did  not  appear  that 
this  seizure  was  made  under  any  instructions  from  the 
President  efthe  United  States,  nor  was  there  any  evidence 
of  its  having  his  sanction,  unless  the  libel  being  filed  and  pi'o- 
secuted  by  the  law  officer  who  represents  the  Government 
might  imply  that  sanction.  On  the  contrary,  it  was  admit- 
ted that  the  seizure  was  made  by  an  individual,  and  the  li-^ 
bel  filed  at  his  instance,  by  the  District  Attorney,  who  act- 
ed from  his  own  impression  of  what  appertained  to  his  du- 
ty. The  propertv  v/as  claimed  under  the  purchase  made 
in  the  preceding  November. 

Could  the  pine  timber,  even  admitting  the  property  not 
to  be  changed  by  the  sale,  be  condem.ned  as  prize  of  war? 

The  cargo  having  been  legally  acquired  and  put  on  board 
the  vessel,  having  been  detained  by  an  embargo  not  intend- 
ed to  act  on  foreign  property ;  the  vessel  having  sailed  be- 
fore the  war  from  Savannah  under  a  stipulation  to  reland 
the  cargo  in  some  other  port  of  the  belligerent  state;  the 
relanding  having  been  made  with  respect  to  the  residue  of 
the  cargo  ;  and  the  pine  timber  having  been  floated  into 
shallow  water  where  it  was  secured,  and  in  the  custody  of 
the  owner  of  the  ship,  a  citizen,  the  court  could  not  perceive 
any  solid  distinction  (so  far  as  respects  confiscation)  be- 
tween this  property  and  other  enemy's  property  found  on 
land  at  the  commencement  of  hostilities.  It  was  there- 
fore considered  as  a  question  relating  to  such  property 
generally,  and  to  be  governed  by  the  same  rule. 

Respecting  the  power  of  government  no  doubt  was  en- 
tertained. That  war  gives  to  the  sovereign  full  right  to 
take  the  persons  and  confiscate  th^^  property  of  the  enemy 
wherever  found,  was  conceded.  The  mitigations  of  this 
rigid  rule,  which  the  humanity  and  wise  policy  of  modern 
times  has  introduced  into  pr^ctice^  will  more  or  less  aifect 


IS  LAW  or  CHAP  I. 

the  exercise  of  this  light,  but  cannot  impair  the  right  it- 
self. That  remains  undiminished  ;  and  whenever  the 
sovereign  authority  shall  choose  to  bring  it  into  operation, 
the  judicial  department  must  give  effect  to  its  will.  But 
until  that  will  shall  be  expressed,  no  power  of  condemna- 
tion could  exist  in  the  court. 
•  The  questions  to  be  decided  were, 

1st,  May  enemy's  property  found  on  land  at  the  com- 
mencement of  hostilities  be  seized  and  condemned  as  a 
necessary  consequence  of  the  declaration  of  war  ? 

2ndly,  Was  there  any  legislative  act  which  authorized 
such  seizure  and  condemnation  ? 

Since  in  this  country,  from  the  structure  of  the  govern- 
ment, proceedings  to  condemn  the  property  of  an  enemy 
found  within  the  territory  at  the  declaration  of  war,  can  be 
sustained  only  upon  the  principle  that  they  are  instituted 
in  the  execution  of  some  existing  law,  we  are  led  to  ask. 

Is  the  declaration  of  war  such  a  law  ?  Does  that  declara- 
tion, by  its  own  operation,  so  vest  the  property  of  the  ene- 
my in  the  government,  as  to  support  a  proceeding  for  its 
seizure  and  confiscation ;  or  does  it  vest  only  a  right,  the 
assertion  of  which  depends  on  the  will  of  the  sovereign 
power  I 

The  universal  practice  of  forbearing  to  seize  and  confis- 
cate debts  and  credits;  the  principle  universally  received 
that  the  right  to  them  revives  on  the  restoration  of  peace, 
would  seem  to  prove  that  war  is  not  an  absolute  confiscation 
of  this  property,  but  simply  confers  the  right  of  confistation. 

Between  debts  contracted  under  the  faith  of  laws,  and 
property  acquired  in  the  course  of  trade,  on  the  faith  of  the 
same  laws,  reason  draws  no  distinction,  and  although,  in 
practice,  vessels  with  their  cargoes,  found  in  port  at  the 
declaration  of  war,  may  have  been  seized,  it  was  not  be- 
lieved that  modern  usage  would  sanction  the  seizure  of  the 
goods  of  an  enemy  on  land,  which  were  acquired  in  peace 
in  the  course  of  trade.    Such  a  proceeding  is  rare,  and 


juaritime  captures  and  prizes.  19 

would  be  deemed  a  harsh  exercise  of  the  rights  of  war. 
But  although  the  practice  in  this  respect  may  not  be  uni- 
form, that  circumstance  does  not  essentially  affect  the  ques* 
tion.  The  enquiry  is,  whether  such  property  vests  in  the 
sovereign  by  the  mere  declaration  of  war,  or  remains  sub- 
ject to  a  right  of  confiscation,  the  exercise  of  which  de- 
pends on  the  national  will :  and  the  rule  which  applies  to 
one  case,  so  far  as  respects  the  operation  of  the  declaration 
of  war  on  the  thing  itself,  must  apply  to  all  others  over 
which  war  gives  an  equal  right.  The  right  of  the  sove- 
reign to  confiscate  debts  being  precisely  the  same  with  the 
right  to  confiscate  other  property  found  in  the  country,  the 
operation  of  a  declaration  of  war  on  debts  and  other  proper- 
ty found  within  the  country  must  be  the  same.  What  then 
is  the  operation  ? 

Even  Bynkershoek,  who  maintains  the  broad  principle 
that  in  war  every  thing  done  against  an  enemy  is  lawful  ; 
that  he  may  be  destroyed,  though  unarmed  and  defenceless  r 
that  fraud  or  even  poison  may  be  employed  against  him  ; 
that  a  most  unlimited  right  is  acquired  to  his  person  and 
property ;  admits  that  war  does  not  transfer  to  the  sovereign  a 
debt  due  to  his  enemy ;  and,therefore,if  pay  ment  of  such  debt 
be  not  exacted,peace  revives  the  former  right  of  the  crecfitor : 
because,  says  he,  the  occupation  which  is  had  by  war  consists 
more  in  fact  than  in  law.  He  adds — Let  it  not,  however, 
be  supposed  that  it  is  only  true  of  actions,  that  they  are  nc" 
condemned,  ipsojure^  for  other  things  also  belonging  to  the . 
enemy  may  be  concealed  and  escape  condemnation.  tI 

Vattelsays — The  sovereign  can  neither  detain  the  per- 
sons nor  the  property  of  those  subjects  of  the  enemy  wlu> 
are  within  his  dominions  at  the  time  of  the  declaration. 

It  is  true  that  this  rule  is,  in  terms,  applied  iiy  Vattel  to 
the  property  of  those  only  who  sre  personally  m  itliin  liii 
territory  at  the  commencement  of  hostilities  j  but  it  applies 
equally  to  things  in  action  and  to  things  in  possession  ;  nnd, 
U'  war  did,  of  itst^li",  without  anv  i'uriher  exercise  .of  the 


20  ^A\v  01-'  ciiAi*  i, 

sovereign. wijl,  vest  the  property  of  the  enemy  in  the  sove- 
reign, his  presence  could  not  exempt  it  from  this  operation 
of  war.  Nor  can  a  reason  be  perceived  for  maintaining 
that  the  public  faith  is  more  entirely  pledged  for  the  secu- 
rity of  property  trusted  in  the  territory  of  the  nation  in  time 
of  peace,  if  it  be  accompanied  by  its  owner,  than  if  it  be 
confided  to  the  care  of  others. 

The  modern  rule  then  would  seem  to  be,  that  tangible 
property  belonging  to  an  enemy  and  found  in  the  country 
at  the  commencement  of  war,  ought  not  to  be  immediately 
confiscated  ;  and  in  almost  every  commercial  treaty  an  ar- 
ticle is  inserted  stipulating  for  the  right  to  withdraw  such 
property. 

This  rule  appears  to  be  totally  incompatible  with  the  idea 
that  war  does  of  itself  vest  the  property  in  the  belligerent 
government.  It  may  be  considered  as  the  opinion  of  all  who 
have  written  on  the  jura  belli^  that  war  gives  the  right  to 
confiscate,  but  does  not  itself  confiscate  the  property  of  the 
enemy  ;  and  their  rules  go  to  the  exercise  of  this  right. 

The  constitution  of  the  United  States  was  framed  at  a 
time  when  this  rule,  introduced  by  commerce,  in  favour  of 
moderation  and  humanity,  was  received  throughout  the 
civilized  world.  In  expounding  that  constitution,  a  con- 
struction ought  not  lightly  to  be  admitted  which  would 
give  to  a  declaration  of  war  an  effect  in  this  country,  it  does 
not  possess  elsewhere,  and  which  would  fetter  that  exercise 
of  entire  discretion  respecting  enemy  property,  which  may 
enable  the  government  to  apply  to  the  enemy  the  rule  that 
he  applies  to  us. 

If  we  look  to  the  constitution  itself,  we  find  this  reason- 
ing  much  strengthened  by  the  words  of  that  instrument. 

That  the  d^  claration  of  war  has  only  the  effect  of  plac- 
ing the  two  nations  in  a  state  of  hostility,  of  producing  a 
;natc  of  war,  of  giving  those  rights  which  war  confers  ;  but 
not  of  operating  by  its  own  force  any  ol  those  results 
(such  as  a  transfer  of  property)  which  are  usually  produced 


MARlTTMr    CAPTURES    AND    PRIZES.  21 

by  ulterior  measures  of  government,  is  fairly  decluciblc 
from  the  enumeration  of  powers  which  accompanies  that 
of  declaring  war.  Congress  shall  have  poxver — to  declare 
rv'ar^  grant  letters  of  ?fiarque  and  reprisal,  and  make  rides 
concerning  captures  on  land  and  ivater. 

It  would  be  restraining  this  clause  within  narrower  limits 
than  the  words  themselves  import,  to  say  that  the  power  to 
make  rules  concerning  captures  on  land  and  water,  is  to  be 
confined  to  captures  which  are  extra-territorial.  If  it  ex- 
tends to  rules  respecting  enemy  property  found  within  the 
territory,  then  we  perceive  an  express  grant  to  Congress  of 
the  power  in  question,  as  an  independent,  substantive  pow- 
er, not  included  in  that  of  declaring  war. 

The  acts  of  Congress  furnish  many  instances  of  legisla- 
tive opinion  that  the  declaration  of  war  does  not,  of  itself, 
authorise  proceedings  against  the  persons  of  property  of 
the  enemy  found,  at  the  time,  Avithin  the  territory. 

War  gives  an  equal  right  over  i)ersons  and  property  % 
and  if  its  declaration  is  not  considered  as  prescribing  a  law 
respecting  the  person  of  an  enem}'  found  in  our  country, 
neither  does  it  prescribe  a  law  for  his  property.  The  act_ 
concerning  alien  enemies,  v/hich  confers  on  the  President 
very  great  discretionary  powers  respecting  their  persons, 
affords  a  strong  implication  that  he  did  not  possess  those 
powers  by  virtue  of  the  declaration  of  war. 

The  Act  for  the  Safe  Keeping  and  Accommodation  of 
Prisoners  of  War,  is  of  the  same  character. 

The  Act  Prohibiting  Trade  with  the  Encmv,  contains 
the  following  clause  :  That  the  President  be  and"  he  hereby 
isi  authorized  to  give,  at  any  time  within  six  months  after 
the  passage  of  this  act,  passports  for  the  safe  transportation 
of  any  ship  or  other  property  belonging  to  British  sub- 
jects, and  which  is  now  within  the  limits  of  the  United 
States.  The  phraseology  of  this  law  shows  that  the  prop- 
erty of  a  British  subject  was  not  considered  by  the  legisla- 
ture as  being  vested  in  the  United  States  by  the  declaration 
4 


2-2  LAW    OF  CHAP    Iv 

of  waf  ;  and  the  authority  which  the  act  confers  on  the 
President,  is  manifestly  considered  as  one  which  he  did  not 
previousl)'  possess. 

Thef  proposition  that  a  declaration  of  war  does  not,  in 
itself,  enact  a  confiscation  of  the  property  of  the  enemy 
within  the  territory  of  the  belligerent  state,  is  believed  to 
be  entirely  free  from  doubt.  Is  there  in  the  act  of  Con- 
gress of  June,  1812,  by  which  war  is  declared  against 
Great  Britain,  any  expression  which  would  indicate  such 
an  intention  ? 

This  act,  after  placing  the  two  nations  in  a  state  of  war,  au- 
thorizes the  President  to  use  the  vvhole  land  and  naval  force 
of  the  United  States  to  carry  the  war  into  effect,  and  to  is- 
sue to  private  armed  vessels  of  the  United  States  commis- 
sions or  letters  of  marque  and  general  reprisal  against  the 
vessels,  goods  and  effects  of  the  government  of  the  United 
Kingdom  of  Great  Britain  and  Ireland,  and  the  subjects 
thereof. 

That  reprisals  may  be  made  on  enemy  property  found 
within  the  United  States  at  the  declaration  of  war,  if  such 
be  the  will  of  the  nation,  had  ,been  admitted;  but  it  was 
not  admitted  that,  in  the  declaration  of  war,  the  nation  had 
expressed  its  will  to  that  effect. 

It  cannot  be  necessary  to  employ  argument  in  shewing 
that  when  the  Attorney  for  the  United  States  institutes 
proceedings  at  law  for  the  confiscation  of  enemy  |5roperty 
faund  on  land,  or  floating  in  a  river  in  the  care  and  custody 
of  a  citizen,  he  is  not  acting  under  authority  of  letters  of 
marque  and  reprisal,  still  less  under  the  authority  of  such 
letters  issued  to  a  private  armed  vessel. 

The  act  concerning  Letters  of  Marque  Prizes,  and  Prize 
Goods,  certainly  contains  nothing  to  authorize  this  seizure. 

There  being  no  other  act  of  Congress  which  bears  upon 
the  subject,  it  was  considered  as  proved,  that  the  legisla- 
ture had  not  confiscate  d  i^nemv  property  which  was  within 
the  United  Sta.tes  at  the  declaration  of  war. 


BIARITIME    CAPTURES    AND    PRIZES.  S3 

One  view,  however,  has  been  taken  of  this  subject  which 
deserves  to  be  further  considered. 

It  was  urged,  that,  in  executing  the  laws  of  war,  the  ex- 
ecutive may  seize,  and  the  courts  condemn  all  property, 
which,  according  to  the  modern  law  of  nations,  is  subject 
to  confiscation,  although  it  might  require  an  act  of  the  le- 
gislature to  justify  the  condemnation  of  that  property 
which,  according  to  the  modern  usage,  ought  not  to  be  con- 
jEiscated. 

The  argument  must  assume  for  its  basis  the  position  that 
modern  usage  constitutes  a  rule  which  acts  upon  the  thing 
itself  by  its  own  force,  and  not  through  the  sovereign  pow- 
er. This  position  was  not  allowed.  This  usage  is  a  guide 
Avhich  the  sovereign  follows  or  abandons  at  his  will.  The 
rule,  like  other  precepts  of  morality,  of  humanity,  and  even 
of  wisdom,  is  addressed  to  the  judgment  of  the  sovereign; 
and  although  it  cannot  be  disregarded  by  him  without  ob- 
loquy, yet  it  may  be  disregarded. 

The  rule  is  in  its  nature  flexible.  It  is  subject  to  infi- 
nite modification.  It  is  not  an  immutable  rule  of  lavv,  but 
depends  on  political  considerations  which  may  continually 
varv. 

Commercial  nations  in  the  situation  of  the  United  States 
have  always  a  considerable  quantity  of  property  in  the  pos- 
session of  their  neighbours.  When  war  breaks  out,  the 
question,  what  shall  be  done  with  the  enemy  propertv  in 
our  country,  is  a  question  rather  of  policy  than  of  law. 
The  rule  which  we  apply  to  the  property  of  our  enemy, 
will  be  applied  by  him  to  the  property  of  our  citizens. 
Like  all  other  questions  of  policy,  it  is  proper  for  the  con- 
sideration of  a  department  which  can  modify  it  at  wilFj 
not  for  the  consideration  of  a  department  which  can  pur- 
sue only  the  law  as  it  is  written.  It  is  proper  for  the  con- 
sideration of  the  legislature,  not  of  the  executive  or  judi- 
ciary. It  appears  to  the  court  that  the  power  of  confisca- 
ting enemy  property  is  in  the  legislature,  and  that  the  h" 


a^  f-AW   OP  CHAP.  U 

gislature  had  no,t  declared  its  will  to  confiscate  property 
which  was  within  our  territory  at  the  declaration  of  war.^^) 
In  the  above  case  the  inferior  court  of  prize  had  con- 
demned the  property,  and  two  of  the  judges  of  the  supreme 
•     court  dissented  from  the   above  decision,  remarking,  that 
it  seemed  to  have  been  taken  for  granted  that  the  opiuioa 
of  the  court  below^  proceeded,  in  some  degree,  upon  a  sup- 
position that  a  declaration  of  war  operates,  per  se^  an  actual 
confiscation  of  enemy's  property  found  within  our  territory. 
On  the  contrai-y,  it  was  admitted  that  a  declaration  of  wai* 
does  not,  of  itself,  import  a  confiscation  of  enemy's  proper- 
ty, within  or  without  the   country,  on  the  land  or  on  the 
high  seas.     The  title  of  the  enemy  is  not  by  war  divested, 
l)ut  remains  va.  proprio  vigore:^  yxaCiX  z.  hostile  seizure  and 
possession  has  impaired  his  title.     But  a  declaration  of  war 
gives  a  right  to  confiscate  enemy's  property,  and  enables 
the  power  to  whom  the  execution  of  the  laws  and  the  pro- 
secution of  the  war  are   confided,  to  rtiforce  that  right. 
If,  indeed,  there  be  a  limit  imposed  as  to  the  extent  to 
which  hostilities  may  be  carried  by  the  executive,  the  exe- 
cutive cannot  lawfully  transcend  that  limit ;  but  if  no  such 
limit  exists,  the  war  may  be  carried  on  according  to  the 
principles  ot  the  modem  law  of  uatiuus,  aud  enforced  when, 
and  where,  and  on  what  property  the  executive  ^hooses. 
In  no  act  whatsoever  had  Congress  declared  the  confisca- 
tion of  enemy's  property.     They  had  authorized  the  Pres- 
ident to  grant  letters  of  marque  and  general  reprisal,  which 
he  might  revoke  and  annul  at  his  pleasure  :  and  even  as  to 
captures  actually  made  under  such  commissions,  no  abso- 
lute title  by  confiscation  vested  in  the  captors,  until  a  sen- 
tence of  condemnation.     If,   therefore,  enemy's   property 
had  come  into  the  ports  of  the  United  States  after  the  war, 
and  the  President  had  declined  to  issue  letters  of  marque 
and  reprisal,  there  was  no  act  of  Congress  which,  in  terms, 

('«)  Per  MAnnnAii,  C.  .T.     Srovm  vs.  the  United  iStates^  Supreme  Court 
0/ tho  U.S.  Fcbrua»7  Term,  18l4,  M.  S. 


IVIARITIME    CAPTURES    AMD    PRIZITS.  &5" 

<3eclared  it  confiscated  and  subjected  it  to  condemnation. 
If,  nevertheless,  it  was  confiscable,  the  right  of  confiscatioa 
resulted  not  from  the  express  provisions  of  any  statute,  but 
from  the  very  state  of  war,  which  subjects  the  hostile  pro- 
perty to  the  disposal  of  the  government.  But  until  the  ti- 
•  tie  should  have  been  divested  by  some  overt  act  of  the  gov- 
ernment and  some  judicial  sentence,  the  property  would 
unquestionably  remain  in  the  enemy  owner  ;  and  if  a  peac^ 
had  intervened,  it  would  have  been  completely  beyond  the 
reach  of  subsequent  condemnation.  There  was,  then,  no 
distinction  recognized  by  any  act  of  Congress,  between  en- 
emy's property  which  was  within  the  ports  of  the  United 
States  at  the  c6mmencement  of  the  war,  and  enemy's  pro- 
perty found  elsewhere.  Neither  were  declared  ipso  facto, 
confiscated;  and  both  were  merely  confiscable. 

The  act  of  June  18th,  1812,  the  Prize  act  of  June  26th, 

1812,  the  act  of  July  6th,   1812,  and  the  act  of  March  3d, 

1813,  were  all  the  acts  which  conferred  powers  on  the  Pres- 
ident, or  make  provisions  touching  the  management  of  the 
war.  In  no  one  of  them  was  there  the  slightest  limitation 
upon  the  executive  powers  growing  out  of  a  state  ©f  war; 
and  they  existed,  therefore,  in  their  full  and  perfect  vigour. 
By  the  constitution  the  executive  is  charged  with  the  faith- 
ful execution  of  the  laws  ;  and  the  language  of  the  act  of 
June  18th,  1812,  declaring  war,  authorized  him  to  carry  it 
into  effect.  In  what  manner,  arid  to  what  extent  should  he 
carry  it  into  effect  ?  There  was  no  act  of  tiit  legislature  de- 
fining the  powers,  objects,  or  mode  of  warfare  :  By  what 
rules,  then,  must  he  have  been  governed  i'  The  only  ration- 
al answer  is,  by  the  law  of  nations  as  applied  to  a  state  of 
war.  Whatever  act  is  approved  by  that  law,  in  hostilities 
among  civilized  nations,  such  act  he  might  in  his  discre- 
tion, adopt  and  exercise ;  for  with  him  the  sovereignty  of 
the  nation  rests  as  to  the  execution  of  the  laws.  If  any  of 
such  acts  are  disapproved  by  the  legislature,  it  is  in  their 
power  to  narrow  and  linnit  the  jextent  to  which  the  rights 


35  LAIV    Ol'  chap.    I. 

of  war  shall  be  exercised  ;  but  unt  1  such  limit  is  assigned, 
the  executive  must  have  all  the  rights  o''  modern  warfare 
veated  in  him,  to  be  e^eixised  in  his  sound  Jiscretion,  or  he 
can  have  none.  Upon  what  principle  can  he  have  an  im- 
plied authority  to  adopt  one  i^nd  not  another  r  The  best 
manner  of  annoying  the  enemy  must,  from  the  nature  of 
things,  vary  under  different  circumstances  ;  and  the  exe- 
cutive is  responsible  to  the  nation  for  the  faithful  discharge 
of  his  duty,  undt-r  all  the  changes  of  hostilities. 

But  it  was  said  that  a  declaration  of  war  does  not,  of 
itself,  import  a  right  to  confiscate  enemy's  property  found 
within  the  country  at  the  commencement  of  war.  This 
proposition  could  not  be  admitted  in  the  extent  in  which  it 
is  laid  down.  Nothing  is  more  clear  from  authority  than 
the  right  to  seize  hostile  property  afloat  in  ports  at  the 
commencement  of  war.  It  is  the  settled  practice  of  na- 
tions, and  the  modern  rule  of  Great  Britain  he  rself  applied 
to  American  property  in  the  present  war;  applied,  also,  to 
property  not  merely  on  board  of  ships,  but,  as  it  appeared 
by  an  affidavit  in  this  case,  to  spars  floating  along  side  of 
them.  It  >vas  also  said  that  a  declaration  of  war  does  not 
carry  with  it  the  right  to  confiscate  property  found  in  the 
country  at  the  commencement  of  war,  because  the  consti- 
tution itself,  in  giving  congress  the  power,  to  declare  rvar^ 
grant  letters  of  marque  and  reprisal^  and  make  rules  con- 
cerning captures  by  Jand  and  xvater^ — has  clearly  evinced 
that  the  power  to  declare  war  did  not,  ex  vi  terininorumy 
include  a  right  to  capture  property  every  where,  and  that 
the  power- to  make  rules  concerning  captures  on  land  and 
water,  may  well  be  considered  as  a  substantive  power  as  to 
captures  of  property  xuitlmi  the  territory.  But  if  the 
power  to  make  rules  respecting  captures,  &c.  be  a  substan- 
tive })ower,  it  is  equally  applicable  to  all  captures,  wherev- 
er made,  On  land  or  on  water.  The  terms  of  the  grant  im- 
port no  limitation  as  to  place.  Upon  the  same  construction 
the  prpwer  to  grant  letters  of  marque  and  reprisal  is  a  sub- 


MARITIME    CAPTURES    AND    rRIZE«;.  2T 

stant'ive  power  ;  and  a  declaration  of  war  could  not,  of  it- 
self, authorize  any  seizure  whatsoever  of  hostile  property, 
unless  this  power  was  called  into  exercise.     The  power  to 
declare  war  includes  all  the  powers  incident  to  war,  and 
iiccessary  to  carry  it  into  effect.     If  the  constitution  had 
been  silent  as  to  letters  of  marque  and  captures,    it  would 
not  have  narrowed  the  authority  of  congress.     The  author- 
ity to  grant  letters  of  marque  and  reprisal,  and  to  regulate 
captures  are  ordinary  and  necessary  incidents  to  the  power 
of  declaring  war.     It  would  be  utterly  ineffectual  without 
them.     The  expression,  therefore,  of  that  which  is  implied 
in  the  very  nature  of  the  grant,  cannot  weaken  the  force  of 
the  grant  itself.     The  words  are  merely  explanatory,  and 
introduced    ex    ahundanti    cautela. — The    above    decision, 
seems  to  admit  that  the  effect  of  hostilities  is  to  confer  all 
the  rights  which  war  confers ;  and  it  seems  tacitly  to  con- 
cede, that,  by  virtue  of  the  declaration  of  war,  the  execu- 
tive would  have  a  right  to  seize  enemy's  property  M'hich 
should  actually  come  within  the  territory  during  the  war. 
Certainly  no  such  power  was  given  directly  by  any  statute: 
and  if  the  argument  be  correct,  vhat  the  power  to  make  cap- 
tures on  land  or  water  must  be  expressly  called  into  exer- 
cise by  the  legislature,  before  the  executive  can,  even  after 
war,  enforce  a  capture  and  condemnation,  it  will  be  very 
difficult  to  support  the  concession.     Suppose   an  enemy's 
ship  of  war  or  merchant  ship  should  have  come  within  our 
ports,   there  was  no  statute  declaring  such   ship  actually 
confiscated.     There  was  no  express  authority  either  for  the 
navy  or  army  to  make  a  capture  of  her :  and  although  the 
executive  might  authorize  a  private  armed  vessel  so  to  do, 
yet  it  would  depend  altogether  upon  the  will  of  the  ves- 
sel's owner  whether  they  would  so  do  or  not.      Can  it^be 
possible  that  the  executive  has  not  the  power  to  authorize 
such  a  seizure  ?  And  if  he  might  authorize  a  seizure  by 
the  army  or  navy,  why  not  by  private  individuals,  if  they 
will  volunteer  for  the  purpose  .^— -The  act  declaring  war 


2S  LAW    OP     ,  GHAP.   I, 

authorized  the  executive  to  employ  the  land  and  naval 
force  of  the   United  States  to  carry  it  into  effect.     When 
and  where  should  he  carry  it   into  effect  ?  Congress  had 
not  declared  that  any  captures  should  be  made  on  land  ; 
and  if  this  be  a  substantive  power,  not  included  in  a  decla- 
ration of  war,  how  could  the  executive  make  captures  on 
the  land,  when  Congress  had  not  expressed  their  will  to 
this   effect  ?  The  power    to   employ  the    army   and  navy 
might  well  be   exercised  in  preventing   invasion,   and  the 
common  defence,  without  necessarily  including  a  right  to 
capture,  if  the   right  of  capture  be   not  an    incident    of 
war  :  and  upon  what  ground  then  could  the  executive  plan 
and   execute   foreign  expeditions    and  foreign    captures  ? 
Neither  the  power  to  seize  and  capture  enemyjs  property 
which  was  without  the  territory,  at  the  commencement  of 
the  war,  nor  the  power  to  seize  that  which  was  within  the 
territory  at  the  same  period,  were  expressly  given  or  deni- 
ed (except  as  to  private  armed  vessels)  and  how  could  ei- 
ther be  assumed  except  as  an  incident  of  war  ?  The  act 
respecting  alien  enemies  and  prisoners  of  war  may,  in  gen- 
eral be  deemed  mere  regulations  of  war,  limiting  and  di- 
recting the  discretion   of  the  executive ;  and  it  cannot  be 
doubted  that  Congress  had  a  perfect  right  to  prescribe  such 
regulations.     To  regulate  the  exercise  of  the  rights  of  war 
as  to   enemies  does  not,   however,  imnjy  that  such  rights- 
have  not   an  independent  existence.     Besides,  it  is  clear 
that  the  act  respecting  alien   enemies  applies  only  to  aliens 
resident  within  the  country,  and  not  to  the  property  of 
Alliens  who  are  not  so  resident. — When  the  legislative  au- 
thority, to  whom   the  right  to  declare  war  is  confided,,  de- 
clares war  in  its  most  unlimited  manner,  the  executive  au- 
thority, to  whom  the  execution  of  the  war  is  confided,  is 
bound  to  carry  it  into  effect.     He  has  a  discretion  vested  in 
him,  as  to  the  manner  and  extent ;  but  he  cannot  lawfully 
transcend  the  rules  of  warfare  established  among  civilized 
nations.     He  cannot  lawfully  exercise  powers  or  authorise 


MARITIME    CAPTURES    AND    PRIZES.  29 

• 

proceedings  which  the   civilized  world  repudiate  and  dis- 
claim.    The  sovereignty,  as  to  declaring  war  and  directing 
its  effects,  rests  with  the  legislature.     The  sovereignty,  as 
to  its  execution,  rests  with  the    President.     If  the  legisla- 
ture do  not  limit  the  nature  of  the  war,  all  the   regulations 
and  rights  of  general  war  attach  upon  it.  It  was  not  there- 
fore contended  that  the  modern  usage  of  nations  constitutes 
a  rule,  acting  on  enemy's  property  so  as  to  produce  confis- 
cation of  itself,  and  not. through  the  sovereign  power.     On 
the  contrary,  it  is  considered,  that  enemy's   property  is  in 
no  case  confiscated   by  the  mere  declaration  of  war  j  it  is 
only  liable  to  be  confiscated,  at  the  discretion  of  the  sove- 
reign power,  having  the  conduct  and  execution  of  the  war. 
The  modern  usage  of  nations  was  resorted  to  merely  as  a 
limitation  of  this  discretion,  not  as  conferring  the  authority 
to  exercise  it.     The  sovereignty  to  execute  it  is  supposed 
already  to   exist  in  the  President  by  the  very  terms  of  the 
constitution  I;  and  it  is  again  asked,  if  this  general  power 
to  confiscate  enemy's  property  does  not   exist   in  the  exe- 
cutive, to  be  exercised  in  his  discretion,  how  could  he  have 
authority   to   seize   and   confiscate  any  enemy's  property, 
coming  into  the  country  after  the  war,  or  found  in  the  ene- 
my's territory  ?(') 

Thus  also  where  salvage  had  been  decreed  upon  proper- 
ty which  was  the  property  of  a  friend  at  the  time  of  its  be- 
ing rescued,  but  war  being  subseqviently  declared,  and  ex- 
isting at  the  time  of  adjudication,  prevented  the  owner,  who 
was  entitled  to  the  residue  after  pajing  the  amount  of  sal- 
vagej,from  interposing  a  claim  in  the  courts  of  the  belligerent 
state.  But  as  this  property  was  found  within  the  territory 
of  that  state  at  the  declanuion  of  war,  it  was  decided  that  it 
must  stand  on  the  same  footing  with  other  enemy's  property 
similarly  situated.  Although  property  of  that  description 
is  liable  to  be  disposed  of  by  the  legislative  power  of  the 

(«)  Per  Stort,  J. 
•        5 


.% 


*-v 


oO  SjAW    OS  CHAP.    i> 

• 

country,  yet,  until  some  act  is  passed  on  the  subject,  it  is 
still  under  the  protection  of  the  law,  and  may  be  claimed 
upon  the  termination  of  war,  if  not  previously  confis- 
cated. The  court  would  therefore  make  such  order  re- 
spectitig  it,  as  would  preserve  it,  subject  to  the  will  of  the 
court,  to  be  disposed  of  as  future  circumstances  should  ren- 
der proper.  (^) 

As  to  the  first  of  the  above  cases  it  should  be  observed 
that  there  was  no  affidavit  in  the  court  below  shewing  the 
timber  to  be  partly  resting  on  land,  but  that  it  appeared  to 
fee  water  borne.  The  decisions  in  both  may  well  consist 
and  stand  with  the  principles  hereinafter  laid  down  as  to 
seizures  in  port  by  non-commissioned  captors  ;  for  the 
only  real  question  of  doubt  or  difficulty  in  the  cases  above 
referred  to  was  one  of  municipal  law, — Whether  the  state 
hsid  declared  its  will  to  confiscate  ?  Had  the  court  deemed 
it  within  the  authority  of  the  judicial  power  under  our 
municipal  constitution,  it  might  have  applied  the  law  of 
vindictive  retaliation  to  these  cases,  it  having  been  proved 
in  the  first,  that  American  vessels  and  spars  floating  along 
side  of  them  had  been  condemned  in  Great  Britain  during 
the  then  present  war  under  like  circumstances.  Vide  injra, 
§13. 

4.  So  also  nations  have  been  induced  for  their  mutual 
benefit,  and  influenced  by  the  increasing  civilization  and 
refinement  of  the  age,  to  temper  the  extreme  rigor  of  this 
right  of  seizing  and  confiscating  enemy's  property  found 
within  the  territory  by  conventional  agreements. 

Thus  by  the  treaties  between  the  United  States  and 
France,  Sweden,  and  Morocco,  from  six  to  nine  months  are 
allowed  the  merchants  of  those  nations  respectively,  to 
withdraw  themselves  and  their  effects,  in  case  bf  war. 
And  it  is  stipulated  in  the  treaty  of  1794  between  the  Unit- 
ed States  and  Great  Britain,  That  in  case  of  a  rupture  be- 

(')  Per  JonNsov,  J.  Tlie  Jldveiiturc,  Supreme  Court  of  the  United 
Slates,  February  Term,  1814#  M.  S.  Vide  infra,  Chuptcr  X.  §  6. 


^ 

^ 


aiARITIME    CAPTURES    AND    PHIZES.  HI 

tween  them,  the  merchants  and  others  of  each  of  the  two 
nations  residing  in  the  dominions  of  the  oth'jr,  shall  have 
the  privilege  of  remaining  and  c©ntinuing  their  trade,  so 
long  as  they  behave  peaceably,  and  commit  no  oftence  a- 
gainst  the  laws  ;  and  in  case  their  conduct  should  render 
them  suspected,  and  the  respective  government  should 
think  proper  to  order  them  to  remove,  the  period  of  twelve 
months  from  th€  publication  of  the  order,  shall  be  allowed 
them  for  that  purpose,  to  remove  all  their  families,  effects, 
and  property ;  but  this  favour  shall  not  extend  to  those 
who  act  contrary  to  the  established  laws.  Art.  26.  The 
act  of  5  Cong.  c.  83,  declares.  That  aliens,  with  whose 
nations  we  have  any  treaty,  shall  in  case  of  war,  be 
permitted  to  remain  in  the  United  States  the  full  tim^ 
stipulated  by  treaty  ;  and  where  there  is  no  such  treat}', 
the  President  may  ascertain  and  declare  such  reasonable 
time  for  their  departure,  as  may  be  consistent  with  the 
public  safety,  and  according  to  the  dictates  of  humanity  and 
national  hospitality. 

5.  The  war  of  1756^h:^y'mg  been  commenced  b}-  Great 
Britain  against  France  without  a  declaration  or  the  Issuing 
of  general  letters  of  marqiie  and  reprisal,  the  question  was 
agitated  in  the  latter  country  between  the  insured  who  had 
stipulated  to  pay  an  increase  of  premium  in  case  of  xvar 
and  the  insurers  who  were  to  receive  it,  whether  hostilities 
of  this  nature  were  to  be  considered  as  within  the  words  of 
the  policy.  For  the  insured  it  was  contended  that  such 
hostilities  could  not  constitute  a  war,  because  by  the  law 
of  nations  no  other  war  is  known  but  that  which  is  declared 
in  a  public  and  solemn  manner  by  one.state  against  anoth- 
er :  Hostes  simt  (juihua  be  Hum  pub  lice  populns  Romamui 
decrevit,  vel  ipsi  populi  Romano^  L.  24.  JFf.  de  Capt,  et 
Post.  On  the  other  hand  it  was  argued,  that  being  author- 
ized by  the  British  government,  they  were  to  be  consid- 
ered as  true  acts  of  hostility  between  nation  and  nation, 
wd  to  be  assimilated  to  a  war.     In  flict  by  the  merporial 


32  LAW    or  CHAP.    I. 

sent  to  the  court  of  London  on  the-2lst  December,  1755, 
ihe  French  king  demanded  the  prompt  and  complete  resti- 
tution of  the  vessels  and  effects  of  his  subjects  which  had 
been  taken,  at  the  same  time  announcing  that  in  case  of  re- 
fusal he  should  consider  such  denial  of  justice  as  an  actual 
declat^.atioii  of  war  on  the  part  of  the  court  of  London. 
The  question  was  finally  decided  against  the  insured,  and 
it  was  determined  that  the  premium  should  be  increased  in 
the  same  manner  as  if  the  words  hostUitie.s  and  reprisal  had 
been  used  in  the  policy. (s) 

6.  As  it  may  happen  that  seizures  of  the  vessels  and  ef- 
fects of  the  enemy  may  be  made  before  the  commencement 
of  hostilities,  and  by  way  of  reprisals  ;  and  as  such  seiz- 
ures may  be  made  either  before  or  subsequent  to  the  com- 
mencement of  hostilities,  by  non  commissioned  captors  it 
becomes  an  important  question  to  determine  in  whom  ^'ests 
the  proceeds  of  such  seizures,  should  the  injustice  of  the 
adverse  power  ultimately  induce  their  confiscation.  By 
the  universal  law  and  usage  of  nations  the  right  to  all  cap- 
tures and  seizures  made  from  an  enemy  vests  in  the  sover- 
eign or  state.  Tlie  municipal  law  of  every  particular  na- 
tion regulates  the  distribution  of  the  proceeds  thereof.  As 
to  captures  made  after  the  commencement  of  shostilities, 
and  in  virtue  of  instructions  given  to  the  public  armed  ves- 
sels of  the  state,  and  of  letters  of  marque  issued  to  private 
armed  vessels,  their  proceeds  are  distributed  with  certain 
reservations,  to  the  individual  captors.  In  respect  to  seiz- 
ures made  before  the  commencement  of  hostilities,  and 
those  made  by  non  commissioned  captors,  they  vest  in  the 
sovereign  or  state,  except  such  porrions  of  them  as  may 
have  been  granted  to  others.  And  by  the  law  of  most  of 
the  maritime  nations  of  Europe,  certain  of  those  portions 
have  been  granted  to,  and  consequently  vest  in,  the  person 

(k)  PotMcr,  (TJlsaurance,  No.  84»  Vaiin,  zur  t'Ordonnance,  L.  3.  tit  0. 
tleslAssurances,  Art.  3. 


:maritime  captures  and  prizes,  o3 

sustaining  the  office  ofvtAdmiral.  Hence,  in  England  these 
portions  are  termed  Droits  of  AJmiraltij.  But  in  cases  of 
seizures  by  non-commissioned  captors,  it  is  usual  to  re- 
ward the  takers  with  a  liberal  share  of  the  propert)-,  which 
is  determined  by  the  proper  court  upon  reference  to  it.('\) 

7.  And  by  the  antient  law  of  France,  those  only  who  had 
commissions  from  the  Admiral  could  lawfully  capture  for 
their  own  use  ;  so  that  if  the  master  of  a  merchant  vessel, 
who  had  no  commission  or  letter  of  marque,  was  attacked 
at  sea  by  an  enemy's  ship,  and  in  defending  himself,  cap- 
tured the  ship  of  the  enemy,  the  prize  did  not  vest  in  the 
captor,  but  belonged  to  the  Admiral,  to  whom  the  rights  of 
the  sovereign  had  been  granted:  but  it  was  customarv  for 
the  Admiral  to  allow  the  captor  a  liberrd  portion  of  the 
prize  as  "a  reward  for  his  exertions  ;  with  a  reservation, 
however,  that  this  act  of  bounty  should  not  be  construed 
into  a  right.(') 

So  also,  in  England,  when  enemy's  vessels  come  into 
port  from  distress  of  weather,  or  want  of  provisions,  or 
from  ignorance  of  war  existing,  and  are  seized  in  port,  they* 
beloftg  to  the  lord  high  admiral ;  or  as  that  office  is  now 
practically  constituted,  to  the  king  in  his  office  of  admiral- 
ty. This  is  likewise  the  case  with  enemy's  ships  and 
goods  met  at  sea,  and  seized*by  any  vessel  not  commis- 
sioned. All  rights  of  prize  belong  originally  to  the  crown, 
and  the  beneficial  interest  derived  to  others  can  proceed  on- 
ly from  the  grant  of  the  crown.  It  was  thought  expedient 
to  assign  a  certain  portion  of  those  rights,  to  maintain  the 
dignity  of  the  lord  high  admiral,  who  now  exists  only  in 
contemplation  of  law.  This  grant,  whatever  it  conveys, 
carries  with  it  a  total  and  perpetual  alienation  of  the  rights 
of  the  crown.  Captors  can  therefore  have  no  interest  in 
prizes  taken  under  such  circumstances  ;  a  perpetual  aliena- 

(h)  1  Robinson,  286.  The  Haase.  lb.  303.  The  Amor  Parentum. 
(')  Pothier,  Be  PropriM,  N«.  93.  YcdiUi  Sur  I' Ordomance,  L.  3:  titi 
&•  d(s  Pri$es,  Art.  1, 


34 


X.AW    Of  GlIAI'.    I. 


tion  of   tiic  crown's  original  right..,to  them  having  been 
made  \o  the  lord  high  admiral.C") 

8.  And  by  the  law  of  France,  enemy's  vessels  driven  oij 
shore  from  distress  of  weather,  or  other  causes,  are  con- 
demned to  the  crown.  Such  are  the  provisions  of  the  or- 
dinance of  the  12th  of  May,  1696,  concerning-  the  adjudi- 
cation of  vessels  driven  on  shore  by  distress  oftueather^  or 
otherwise.  His  majesty  being  informed  that  certain  dis- 
putes have  arisen  concerning  the  adjudication  of  stranded 
vessels,  either  in  respect  to  those  which  being  of  foreign 
built  are  unprovided  with  a  bill  of  sale,  or  in  respect  to 
goods  unaccompanied  by  a  bill  of  lading,  under  the  pretext 
that  the  regulation  of  the  ITth  February,  1694,  appears  to 
be  confined  to  captured  vessels,  and  that  the  article  of  the 
ordinance  of  August,  1681,  which  confiscates  goods  unac- 
companied by  bills  of  lading  is  invested  under  the  title 
oi  prizes  ;  his  majesty  being  desirous  to 'provide  a  remedy 
herein,  in  of  der  that  the  said  goods  and  vessels,  which  are 
really  enemy's  property,  but  often  claimed  by  the  subjects 
of  neutral  princes,  may  not  in  any  case  be  withdrawn  from 
the  confiscation  to  which  they  are  justly  liable  by  the  laws 
of  war,  and  by  the  antient  and  modern  ordinances ;  his 
majesty  hath  ordained  and  doth  hereby  ordain  that  the  ves- 
sels which  are  stranded  up»n  the  coasts,  or  driven  thither 
by  distress  of  weather,  or  otherwise,  shall  be  judged  ac- 
cording to  the  ordinance  of  August,  1681,  under  the  title 
of  prizes,  and  according  to  the  regulation  of  the  17th  Feb- 
ruary, 1694 ;  so  that  every  vessel  stranded,  which  is  of  en- 
emy built,  or  originally  belonging  to  an  enemy  proprietol-, 
shall  not  be  considered  as  neutral,  but  shall  be  wholly  con- 
fiscated to  his  inajcstifs  use,  unless  the  sale  was  made  in 
the  pi'esence  of  some  public  magistrate  before  whom  such 
transfers  are  usually  made,  and  unless  the  bill  of  sale  be 
found  on  board  accompanied  by  a  legal  power  given  by  the 

fk)  6  Robinson,  2S2,  The  Maria  Francaiscf 


AIARITIME    CAPTUKES    AND    PKlZt«S.  Sif 

former  owner  in  case  the  sale  is  made  by  his  agent.*  His 
majesty  likewise  ordains  that  the  goods  of  the  cargo  of 
such  stranded  vessels,  unaccompanied  by  bills  of  lading, 
shall  be  and  remain  entirely  confiscated  to  his  use  ;  it  not 
being,  however,  his  majesty's  intention  to  include  in  the 
present  ordinance  stranded  vessels,  whose  papers  may 
have  been  lost  by  distress  of  weather  and  the  calamity  of 
shipwreck,  in  case  the  master  or  commander  makes  a  de- 
claration thereof  forthwith,  and  the  faets  justify  the  pre- 
sumption of  its  truth  ;  in  which  case  his  majesty  ordains 
that  the  claimants  shall  have  liberty  to  produce  a  certified 
copy  of  the  bill  of  sale,  and  duplicates  of  the  bills  of  la- 
ding. 

9.  And  where  Dutch  property  was  seized  in  England  be- 
fore a  declaration  of  war  against  Holland,  it  was  condemn- 
ed to  the  crown,  upon  the  ground  that  the  declaration  had 
a  retroactive  effect,  applying  to  all  property  previously  de- 
tained, and  rendering  it  liable  to  be  considered  as  the  prop- 
erty of  enemies  taken  intime  of  war.  The  seizure  was  de- 
termined to  be  provisional  and  equivocal  as  to  the  effect, 
and  liable  to  be  varied  by  subsequent  events.  If  the  rela- 
tions of  peace  had  been  ultimately  re-established,  then  the 
seizure,  though  made  with  the  character  of  a  hostile  seiz- 
ure, would  have  proved,  in  the  event  a  mere  embargo,  or 
temporary  sequestration.  The  property  would  have  been 
restored,  as  is  usual  at  the  conclusion  of  embargoes  ,•  ei 
process  often  resorted  to  in  the  practice  of  nations,  for  va- 
rious causes  not  immediately  connected  with  any  expecta- 
tion of  hostility.  Such  would  have  been  the  retroactive 
effect  of  that  course  of  circumstances.  On  the  contrary  if 
tlie  transactions  end  in  hostility,  the  retroactive  effect  is 
directly  the  other  way.  It  impresses  the  direct  hostile 
character  upon  the  original  seizure.  It  is  declared  to  be 
720  embari^'o^^  it  is  no  longer  an  tquivocal  act  subjt;ct  to  two 
interpretations  ;  there  is  a  declaration  of  the  animus  by 
which  it   was  done,   thtst  it  Avas  don°  ho^Jih  anlmo^   and  is 


3(5  LAW  or  cjiAi'.   '. 

to  be  coiisKlererl  ?.s  a  hostile  measure  ab  initio.  The  prop- 
erty takvn  is  liable  to  be  treated  as  the  property  of  persons 
Uespassers  ab  initio^  and  guilty  of  injuries  which  they  have 
refused  to  redeem  by  any  amicable  alteration  of  their 
mfeasures.  This  is  the  necessary  course,  if  no  particular 
compact  intervenes  for  the  restitution  of  such  property  be- 
fore a  formal  declaration  of  hostilities. (') 

10.  Where  the  capture  was  made  by  a  vessel  sent  out  by 
the  captain  of  a  man  of  war,  but  not  attached  as  a  tender  to 
the  ship  of  war,  it  was  condemned  as  a  droit  of  admiralty, 
upon  the  ground  of  its  being  taken  by  a  non-commissioned 
vessel.  The  only  parties  that  can  maintain  an  interest 
in  prize  are  public  ships  of  war  and  private  armed  ves- 
sels commissioned  as  letters  of  marque.  Commanding 
OiHcers  of  those  ships  may  have  a  right  to  put  their  men, 
arms,  and  stores  on  board  another  vessel ;  but  by  so  doing 
an  officer  cannot  be  said  to  put  that  other  vessel  into  com- 
mission, and  entitle  it  to  the  privilege  of  being  reckoned 
amongst  the  description  of  vessels,  to  v/hich  the  interest  in 
prize  is  given  by  law.  If  a  capture  is  made  by  a  tender  at- 
tached by  the  interposition  of  public  authority ;  on  every 
principle  which  a  capture  by  a  boat  would  entitle  its  ship, 
a  capture  made  by  a  tender,  specially  employed  in  that  cap- 
ture by  tiie  ship  of  war  to  which  she  belonged,  might,  per- 
haps, entitle  that  ship.  But  not  so  with  a  tender  attached 
by  the  private  act  of  the  officer  hiring  and  manning  her 
himself.  The  character  of  a  part  of  the  navy  is  not  to  be 
impressed  without  the  intervention  of  some  public  authori- 

ty.C") 

The  same  doctrine  was  held  by  the  Lords  Commls- 
s-ioners  of  Appeals  in  Prize  Causes  in  England,  on  the 
claim  of  the  Abergavenny  ship  of  war  to  share  in  the 
c:i|  tr.re  oi  Curacoa,  in  virtue  of  the  presence  and  co-opera- 

(')   »   It iliiiLunn,  '.'.3  3.     'l"lie  llocilcs  Lust. 

C'  ;  5  }r/',nsu/i,  -11,  T!ic  .Melomasne.— i<!'.  280.  The  Charlotte, 


MARITIME    CAPTURES    AND    PRIZES.  3/ 

tion  of  a  tender  so  constituted,  and  sent  out  to  cruize  by  the 
captain  of  the  ship  without  the  intervention  of  any  public 
authority ;  when  the  court  decided  against  the  claimj 
May  4th,  1805.(») 

11.  And  where  private  armed  vessels  having  letters  of 
marque  iigainstone  enemy  power,  and  a  war  broke  out  with 
another  ;  the  captures  made  from  that  other  were  condemn* 
ed  not  to  the  captors,  but  as  droits  of  admiralty.(*>) 

13.  Notwithstanding  the  above  principles  relative  to 
prizes  made  by  non-commissionsd  captors  appear  to  be  well 
settled  as  a  part  of  the  law  and  practice  of  nations,  yet  they 
are  apparently  controverted  by  the  learned  Bynkershock 
io  the  single  case  of  a  capture  made  by  a  merchant  vessel, 
attacked  at  sea  by  an  enemy's  ship,  and  who  in  defending 
herself  captures  the  ship  of  the  enemy.  In  this  case,  he 
labours  to  shew  that  the  master  and  crew  of  the  merchant 
vessel  are  alone  entitled  to  the  prize  to  the  exclusion  of  the 
owners  and  freighters. (p)  But  it  is  evident  that  this  must 
depend  upon  the  municipal  regulations  of  the  belligerent 
nation.  For  the  right  to  prize  is  originally  inherent  in  the 
sovereign  or  state.  No  person  can  have  any  interest  in  it 
but  what  he  takes  as  the  gift  or  grant  of  the  sovereign  or 
state.  The  right  of  making  war  and  peace  is  exclusively  in 
them  :  the  acquisitions  of  war  belong  to  them  :  and  the  dis- 
posal of  these  acquisitions  may  be  of  the  utmost  importance 
for  the  purposes  both  of  war  and  peace.  This  is  generally 
received  as  a  necessary  principle  of  public  jurisprudence 
by  all  writers  on  the  subject,  jBe//o  parta  cedunt  Re'ipublicce, 
It  is  not  to  be  supposed  that  this  wise  attribute  of  sove- 
reignty is  conferred  without  reason  ;  it  is  given  for  the 
purpose  assigned,  that  the  power  to  whom  it  belongs  to  de- 

(">  5  Robinson,  lb.  In  JYvtis. 

(o)  2  BroTvn's  c.  iv.  ^  Adm.  Laiv,  526.  Appendix.  4  Robinson,  7% 
The  Abigail. 

(p)   Q. /.  P.  L.  1.  c.  20. 


3B  LAW   OP  CHAP.  I. 

cide  on  peace  or  war,  may  use  it  in  the  most  beneficial 
manner  for  the  purposes  of  both.  A  general  presumption 
arising  from  these  considerations  is,  that  government  does 
not  mean  to  divest  itself  of  this  universal  attribute  of  sove- 
reignty, conferred  for  such  purposes,  unless  it  is  so  clearly 
and  unequivocally  expressed.  (i;  Vain  is  it  to  allege  that 
the  captors,  in  the  case  stated  above,  act  under  the  natural 
law  of  self  defence,  paramount  to  all  civil  laws  whatsoever. 
For  this  right  conferred  by  the  law  of  nature  is  merged  in 
the  social  compact,  or  at  least  must  be  exercised  in  subor- 
dination to  the  regulations  of  civil  society*  Unless  there- 
fore the  municipal  law  of  the  belligerent  state  has  otherwise 
ordained  it,  the  right  to  prizes  captured  under  these  cir- 
cumstances must  vest  in  the  sovereign  or  state.  In  Great 
Britain,  a  statute  provision  divides  the  proceeds  of  the 
prize  thus  captured  between  the  master  and  crew,  and  the 
owners  of  the  merchant  vessel,  in  the  same  manner  as  is 
practised  in  the  case  of  private  armed  vessels,  Stat.  22  &  25 
Charles  II.  c.  2.  And  in  case  of  recaptures  by  non-com- 
missioned vessels,  the  property  retaken  becomes  a  droit  of 
admiralty  J  but  it  is  always  referred  to  the  court  of  admi- 
ralty to  fix  the  proportion  of  reward  due  to  the  salvors. ( ■^) 

13.  As  the  United  States  have  not  alienated  their  origi- 
nal right  to  prizes,  except  as  to  those  made  by  public  and 
private  armed  and  commissioned  vessels,  it  follows,  that^ 
in  this  country,  the  right  to  priaes  made  before  a  declara- 
tion of  war,  or  by  non-commissioned  captors,  vests  in  the 
United  States,  If,  therefore,  property  which  has  been  sub- 
jected to  an  embargo  or  temporary  sequestration,  or  which 
has  been  seized  by  non-commissioned  captors,  is  finally 
condemned  as  enemy's  property,  it  must  be  condemned  to 
the  United  States,  the  captors  having  no  legal  interest  in 
prizes  made  under  such  circumstances.     And  non-commis- 

(■i)  6  Itobimou,  \72,  The  Elscbc. 

CO  f  Robimon,  178,  The  San  Bernado.    lb.  286,  The  Ilaosc- 


MARITIME    CAPTURES    AND    PRIZES.  3& 

sioned  captors  are  rewarded  in  this  country  not  by  the  ex- 
ecutive authority,  but  by  the  legislature.  Fide  the  seve- 
ral acts  of  Congress  passed  during  the  late  war  granting  to 
individuals  vessels,  and  other  property  captured  by  them 
without  a  letter  of  marque. 

It  is  evident  that  none  of  the  preceding  principles  can  be 
applicable  to  vessels  and  goods  wrongfully  taken  and  de- 
tained before  a  declaration  of  war.  Such  property  cannot 
be  confiscated  after  the  declaration,  but  ought  to  be  restor- 
ed to  the  enemy  owners  ;  because  had  it  not  been  for  the 
wrong  first  done  it  would  not  have  been  in  the  possession 
of  the  belligerent  state.  Vide  the  famous  Report  of  Sir 
George  Lee,  &c.  on  the  Memorial  of  the  Prussian  Ministei!^ 
to  Great  Britain,  of  the  18th  of  January,  1753,  by  which 
it  appears  that  French  ships  and  effects,  wrongfully  taken 
before  France  became  a  party  to  the  war  which  was  ter- 
minated by  the  treaty  of  Aix  La  ChaptUe,  were  restored  to 
the  French  owners  by  decree  of  the  English  courts  of  prize, 
jiagrante  hello.  Nothing  can  justify  a  departure  from  this 
course,  unless  indeed  it  be  the  conduct  of  the  enemy  ;  for 
we  are  told  by  authority  equally  high  with  that  of  the  au- 
thors of  this  Report,  that  it  is  the  constant  practice  of  Great 
Britain  to  condemn  property  seized  before  the  war,  if  the 
enemy  condemns,  and  to  restore  if  the  enemy  restores. (^'^ 

(^)  Per  Sii-  W.  Sgott,  in  tlie  Santa  Cruz,  1  Rob.  fl4. 


40  LAW    OF  CHAP.    II, 


CHAPTER  II. 

Of  the  aiUhoritij  to  make  captures,  and  what  thing's  are  e::- 
emptjrom  capture. 

1,  The  sovereign  power  of  the  state  has,  alone,  authority 
to  make  war.  But  as  the  different  rights  which  constitute 
this  power,  originally  resident  in  the  body  of  the  nation, 
3nay  be  separated  or  limited  according  to  the  national  will, 
at  is  in  the  munieipal  constitution  of  each  particular  state 
that  we  are  to  seek  the  power  of  making  war.('')  Thus  in 
the  United  States  the  Congress  are  invested  with  this  pow- 
er.    Constitution,  art.  1.  §  8.  10. 

2.  Whatever  belongs  to  the  enemy  state  or  sovereign,  or 
to  their  citizens  or  subjects,  may  be  termed  things  belong- 
ing to  the  enemy,  res  hnstiles.(^) 

A  state  taking  up  arms  in  a  just  cause  has  a  double  right 
against  its  enemy.  1st,  Aright  of  putting  itself  in  posses- 
sion of  what  belongs  to  it,  and  which  the  enemy  witholds  ; 
and  to  this  must  be  added  the  expenses  incurred  to  this  end, 
the  charges  of  the  war,  and  the  reparation  of  damages. 
For  were  the  belligerent  state  obliged  to  bear  these  expen- 
ses and  losses,  it  would  not  fully  obtain  what  is  its  due,  or 
what  belongs  to  it.  2d,  It  has  a  right  of  weakening  the 
enemy  for  the  purpose  of  disabling  him  from  supporting  an 
unjust  violence  ;  the  right  to  take  from  him  all  means  of 
resistance.  Hence  arise  all  the  rights  of  war  with  regard  to 
things  belonging  to  the  enemy. (•=) 

(0    Vatlel,  L.  3.  c.  1.  §  4.     Martens,  L.  8.  c.  2.  §  1. 

(»')   Vuttel,L.  3.  c.  5.  §  7S. 

^c)  lb.  L.  3.  c.  9.  §  1.    Martens,  L.  8.  c.  3.  J  9. 


•    IMAKITIMK    CATTURES    AXD    PRIZES.  41 

3.  All  things  belonging  to  the  enemy  are  therefore  sui)- 
ject  to  capture. C)  This,  however,  must  be  understood  with 
certain  exceptions,  which  will  be  hereafter  explained. 

4.  All  moveable  things  taken  from  the  enemy  belong  to 
the  sovereign  or  state  making  war.  They  may  reserve  the 
property  to  themselves,  or  grant  it  to  the  captors.  The  ti- 
tle to  it  is  vested  in  them,  and  thence  derived  to  the  indivi- 
dual captors  according  to  the  municipal  regulations  of  each 
particular  state. (^) 

5.  Captures  made  by  public  armed  vessels  are  m^^de  in 
pursuance  of  the  instructions  given  them  by  the  sovereign 
or  state.  Those  made  by  private  armed  vessels  or  mer- 
chantmen are  in  virtue  of  commissions  or  letters  of  marque 
granted  to  them. 

Subjects  are  not  obliged  to  weigh  scrupulously  the  Jus- 
tice of  the  war  ;  but  in  case  of  doubt  are  to  rch'  upon  the 
judgment  of  the  supreme  power  of  the  state.  Nor  can 
there  be  any  doubt  that  they  may  with  a  safe  conscievce 
serve  their  country  by  fitting  out  private  armed  vessels  to 
cruise  against  the  commerce  of  the  enemy,  unless  the  war 
be  evidently  unjust.  Thtse  adventurers  have  been  some- 
times denominated  free-hooters  or  pirates  :  but  this  is 
manifestly  absurd,  for  what  they  do  is  done  under  the  sanc- 
tion of  public  authority. (^) 

By  the  law  of  France  private  armed  vesse^s  ran  only  be 
fitted  out  by  a  commission  irom  the  government,  which 
cannot  be  obtained  without  giving  security  for  t^^cir  -•  spon- 
sibility  on  account  of  unlawful  conduct.  The-  .'moui.t  of 
this  security  was  fixed  at  seventy  four  thous^ird  fran-.  s  by 
a  decree   of  thf.    2d    Prairial,    11th  year,  22d  May,    1813. 

(<»)  Bijnkershoek,  Q.  J    Pub.  L  1  c.  1. 

(e)  ra«e/,  L.3.  c.  9.  §  164  Azuni,  Part  %  c.  4.  art  ■>  J  1.  Q-rrm. 
princeps  sit,  cvjus  auspiciis  belhim  geritur,  ulemqne  et  siimptusct  OTtfr  .fnt, 
prxda  ipsi  cedit — Heinnecius,  De  nav  ob  vet.  iner.  vcc.  C( a.i-  vj  \o 

(')  Vatte\  L.  3.  c  15  §  229.  JBynkerslwek,  Q.  J.  t-ub.  L.  1.  c.  18. 
Azttni,  Part  2.  c.  5.  art.  3.  §  1.  2. 


4:i  LAW  or  chap.  ii. 

This  aniouiit  is  reduced  to  one  half,  if  the  vessel  is  manned 
by  less  than  one  hundred  and  fifty  men.  The  owners,  the 
commander,  and  two  sureties  are  required  to  join  in  the 
stipidation  for  this  purpose. 

In  Great  Britain  letters  of  marque  cannot  issue  to  any- 
private  armed  vessel  until  a  stipulation  in  the  nature  of  bail 
is  given  before  the  judge  of  the  high  court  of  admiralty  or 
his  surrogate,  in  the  sum  of  three  thousand  pounds  ster- 
ling, if  the  ship  carries  above  one  hundred  and  fifty  meni 
and  if  a  less  number,  in  the  sum  of  fifteen  hundred  pounds 
sterling,  with  condition  to  render  full  satisfaction  for  any 
damage  or  injury  done  to  British  subjects  or  the  subjects 
of  foreign  states,  in  amity  with  Great  Britain.(») 

By  the  act  of  congress  of  1812,  concerning  letters  of 
marque,  prizes,  and  prize  goods,  it  is  provided  that  before 
any  commission  of  letters  of  marque  and  reprisal  shall  be 
issued,  the  ovrner  or  owners  of  the  ship  or  vessel  for  which 
the  same  shall  be  requested,  and  the  commander  thereof 
for  the  time  being,  shall  give  bond  to  the  United  States, 
with  at  least  two  responsible  sureties,  not  interested  in  such 
vessel,  in  the  penal  sum  of  five  thousand  dollars  :  or  if 
such  vessel  be  provided  with  more  than  one  hundred  and 
fifty  men,  then  in  the  penal  sum  of  ten  thousand  dollars  ; 
with  condition  that  the  owners,  officers,  and  crew,  who 
shall  be  employed  on  board  such  commissioned  vessels, 
shall  and  will  observe  the  treaties  and  laws  of  the  United 
States,  and  the  instructions  which  shall  be  given  them  ac- 
cording to  lav/  for  the  regulation  of  their  conduct ;  and 
v/ill  satisfy  all  damages  and  injuries  which  shall  be  done  or 
committed  contrary  to  the  tenor  thereof  by  such  vessel, 
and  to  deliver  up  the  same  when  revoked  by  the  President 
of  the  United  States. 

So  also  by  the  act  of  congress  of  1815,  for  the  protection 
of  the  commerce  of  the  United  States,  against  the  Algc- 

(«)  2  liobinmi,  Appcnilix,  No.  8.  P,  13- 


MARITIME    CAPTUP.es    AM)    PRIZES.  4o 

rinecruizers,  Sec.  3.  it  is  provided,  Thnt  on  the  apinlcutioii 
of  the  owners  of  private  armed  vessels  of  the  United 
States,  the  President  of  the  United  States  may  grant  them 
special  commissions  in  the  form  which  he  shall  direct,  un- 
der the  seal  of  the  United  States  ;  and  such  private  armed 
vessels,  when  so  commissioned,  shall  have  the  like  author- 
ity for  subduing,  seizing,  taking  and  bringing  into  port  any 
Algerine  vessel,  goods  or  effects,  as  the  beforementioned 
public  armed  vessels  may  by  law  have  ;  and  shall  therein 
be  subject  to  the  instructions  which  may  be  given  by  the 
President  of  the  United  States  for  the  regulation  of  tUeir 
conduct ;  and  their  commissions  shall  be  revocable  at  hia 
pleasure.  Provided^  That  before  any  commission  shall  be 
granted  as  aforesaid,  the  owner  or  owners  of  the  vessel  fpr 
which  the  same  may  be  requested,  and  the  commander 
thereof  for  the  time  being  shall  give  bond  to  the  United 
States,  with  at  least  two  responsible  sureties,  not  interested 
in  such  vessels,  in  the  penal  sum  of  seven  thousand  dollars,, 
or  if  such  vessel  be  provided  with  more  than  one  hundred 
and  fifty  men,  in  the  penal  sum  of  fourteen  thousand  dol- 
lars, with  condition  for  observing  the  treaties  and  laws  o- 
the  United  States,  and  the  instructions  which  may  be  given 
as  aforesaid,  and  also  for  satisfying  all  damages  and  inju- 
ries which  shall  be  done  contrary  to  the  tenor  thereof,  by 
such  commissioned  vessel,  and  for  delivering  up  the  com- 
mission when  revoked  by  the  President  qI  the  United 
States, 

6.  A  question  here  arises  whether  the  owners  and  offi- 
cers of  a  private  armed  vessel  are  liubie  for  illegal  acts 
committed  during  the  cruize  beyond  the  amount  of  the  se- 
curity thus  given,  and  if  so,  whether  they  are  thus  liublr. 
to  a  greater  extent  than  the  value  of  the  vessel,  her  tackle, 
apparel  and  arms.  No  doubt  can  be  entertained  as  to  the 
commander  that  h.e  ought  to  be  held  liable  for  the  imme- 
diate consequences  of  his  own  acts.  And  as  to  the  ov,iv 
€ijb,  it  seems  equally  clear  tlwat  tiieir  liabilitv  ";  r.ot  Hr."''.'  '" 


44  LAW    OF  CHAP   n. 

bv  the  amount  of  the  penalty  of  the  bond  or  stipulation 
they  are  coinpclkd  to  give  ;  but  the  only  doubt  that  can 
arise  is,  whether  this  liability  ought  not  to  be  restricted  to 
the  value  of  the  vessel,  her  tackle,  apparel,  and  arms.  Po- 
thier  decides  that  the  owner  may  entirely  discharge  him- 
self from  his  resppnsibiiity  beyond  the  amount  of  the  pen- 
alty by  abandoning  the  vessel  to  the  injured  party. (^')  But 
there  is  some  reason  to  believe  that  this  decision  is  founded 
upon  a  deduction  from  the  provision  of  the  civil  law  in  re- 
spect to  the  actions  de  pauptrie  and  noxalis  ;  the  first  of 
wiiich  v.'as  given  against  the  owner  of  a  quadruped  who 
had  doLie  an  injury  to  some  person  by  kicking,  biting,  &c. 
which  was  called  puuperiem  facere.  Inst.  L.  4.  tit.  9. 
Dig.  L.  9.  tit.  1.  The  second  lay  against  the  master  of 
a  slave  for  any  injury  done  by  him,  Dig.  L.  9.  tit.  4.  and 
in  bodi  these  the  owner  or  master  was  discharged  by  deliv- 
ering up  the  quadruped  or  ulavc.  But  no  correspondent 
provision  is  to  be  found  in  our  municipal  law,  the  respon- 
sibiiitv  of  the  owners  of  merchant  vessels  not  being  limited 
to  the  value  of  the  vessels  and  freight,  as  in  Great  Britain  (') 
and  France. ('^)  The  modern  law  of  France  goes  even  be- 
yond this  decision  of  Pothier,  and  provides  that  the  own- 
ers of  private  armed  vessels  shall  in  no  case  be  responsible 
for  torts  and  depredations  committed  by  their  officers  and 
crews  upon  the  high  seas  beyond  the  amount  nf  the  secu- 
ritv  given  bv  them,  unless  they  were  access('ry  to  the  com- 
niicting  of  the  same.  Code  de  Commerce ^  hxx..  217.  But 
it  is  evident  that  this  limitation  of  the  liabdity  of  the  par- 
ties must  depend  upon  the  positive  provisions  of  municipal 
law  ;  and  that  unless  it  be  thereby  expressly  confined  to 
the  value  of  the  vessel  and  her  appurtenances,  it  must  be 
indefinite  in  its  extent,     l.'i  they  are  not  personally  bound 

CO  Folhuir.  dc  I-'ropilctc,  No.    92. 

(■)  Sut.  7  Geo.  11.  c.  15. 

O  Coi/o' i/j  Co;/»wtTcc,  Art.  216. 


MARITIME    CAPTURES    AND    RRIZpS,  46 

to  a  further  extent  than  the  value  of  the  vessel  and  her  ap- 
purtenances, why  is  a  specific  sum  required  which  may,  in 
many  instances,  greatly  exceed  that  value  ?  If  the  law  con- 
templated that  this  value  should  fix  the  extent  of  their  lia" 
bility,  it  would  direct  the  ship  to  be  valued,  and  order  secu- 
rit  to  be  taken  in  the  precise  amount  of  the  valuation.  The 
commander  who  captures>  in  consequence  of  an  authority 
which  he  has  received,  is  appointed  for  that  special  pur- 
pose, and  those  who  appoint  him  are  responsible  for%.the 
execution  of  the  trust.  Thus  the  civil  law  gives  the  action 
exercitoria.,  Dig.  L.  14.  tit.  1,  against  the  owner  of  a  ves- 
sel for  the  act  of  the  master,  when  the  latter  is  acting  in  the 
course  of  his  emplovment  as  such.  If  the  owner  be  thus 
liable,  it  clearly  follows,  that  he  is  so  to  the  amount  of  his 
whole  property,  and  that  he  is  not  discharged  by  deliver- 
ing up  the  Vessel.  Therein  our  own  municipal  law  agrees 
with  the  civil. 

The  prize  acts  of  1812,  provides.  Sec.  6.  That  if  the  cap- 
ture be  made  without  probable  cause,  or  otherwise  unrea- 
sonably, the  courts  may  Order  and  decree  damages  and 
costs  to  the  party  injured,  and  for  which  the  owners  and 
cominanders  of  the  vessels  viaking  such  captures^  and  also 
the  vessels^  shall  be  liable  ;  and  our  own  courts  of  prize 
have  adjudged  that  the  owners  of  a  privateer  are  responsi- 
ble for  the  conduct  of  their  agents,  the  officers  and  crew, 
to  all  the  world  ;  and  that  the  measure  of  such  responsi- 
bility is  the  full  value  of  the  property  injured  or  destroy- 
ed.(' J  And  all  the  owners  are  responsible  in  solidum ;  nor 
can  a  part  owner  exempt  himself  from  his  general  r-espon- 
sibility  by  compensation  pro  tanto,  and  a  release  from  the 
claimant  as  to  him.('") 

7.  By  the  laws  of  the  United  States  it  is  enacted  that, 
If  any  citizen  shall,  within  the  territory  or  jurisdiction  of 

(0  3  Dallas,  333.  Del  Col.  vs.  Arnold, 
(■")  5  Robinson,  The  Karasan. 


46  LAW    OF  CHAP    H^ 

the  United  States,  except  and  exercise  a  commission  to 
serve  a  foreign  prince  or  state  in  war,  by  land  or  sea,  the 
person  so  offending  shall  be  deemed  guilty  of  a  high  mis- 
demeanor, and  shall  be  fined  not  more  than  two  thousand 
dollars,  and  shall  be  imprisoned  not  exceeding  three  years; 
And  it  is  likewise  provided,  That  if  any  person  shall,  with- 
in any  of  the  ports,  harbours,  bays,  rivers,  or  other  waters 
of  the  United  States,  fit  out  and  arm,  or  attempt  to  fit  out 
and  arm,  or  procure  to  be  fitted  out  and  armed,  or  shall 
knoAvingly  be  concerned  in  the  furnishing,  fitting  out,  or 
arming  of  any  ship  or  vessel,  with  intent  that  such  ship  or 
vessel  shall  be  employed  in  the  service  of  any  foreign 
prince  or  state,  to  cruize  or  commit  hostilities  upon  the 
subjects,  citizens,  or  property  of  another  foreign  prince  or 
state,  with  whom  the  United  States  are  at  peace,  or  shall 
issue  or  deliver  a  comnRission  within  the  territory  or  juris- 
diction of  the  United  States,  for  any  ship  or  vessel,  to  the 
intent  that  she  may  be  employed  as  aforesaid,  every  such 
person,  so  offending,  shall,  upon  conviction,  be  adjudged 
guilty  of  a  high  misdemeanor,  and  shall  be  fined  and  im- 
prisoned at  the  discretion  of  the  court  in  which  the  convic- 
tion shall  be  had,  so  as  the  fine  to  be  imposed  shall  in  na 
case  be  more  than  five  thousand  dollars,  and  the  term  of 
imprisonment  shall  not  exceed  three  years,  and  every  such 
ship  or  vessel,  with  her  tackle,  apparel,  and  furniture,  to- 
gether with  all  the  materials,  arms,  ammunition,  and  stores, 
which  may  have  been  procured  for  the  building  and  equip- 
ment thereof,  shall  be  forfeited,  one  half  to  the  use  of  any 
person  who  shall  give  information  of  the  offence,  and  the 
other  half  to  the  use  of  the  United  Statcs.(")  And  by  a 
subsequent  act  it  is  also  provided.  That  if  any  citizen  of  the 
United  States  shall,  without  the  limits,  of  the  same,  fit  out 
or  procure  to  be  fitted  out,  or  knowingly  be  concerned  m 
the  fitting  out  of  a  privateer  for  the  purpose  of  cruizing 

(")  3  Laws  U.  S-  8P. 


MARITIME    CAPTURES    AND    TRIZES.  4? 

against  the  subjects  of  a  nation  in  amity  with  the  United 
States,  or  shall  take  the  command,  or  serve  on  board  of 
such  privateer,  or  purchase  any  interest  in  the  same,  he 
shall  be  adjudged  guilty  of  a  high  misdemeanor,  and  be 
punished  by  a  fine  not  exceeding  ten  thousand  dollars,  and 
imprisonment  not  exceeding  ten  years. ("; 

And  by  the  law  of  France,  its  subjects  were  forbidden 
to  take  commissions  from  any  foreign  kings,  princes,  or 
states,  for  the  purpose  of  arming  ships  of  war,  and  cruising 
therewith  on  the  high  seas  under  the  foreign  flag,  unless 
by  permission  of  the  government,  under  the  penalty  of  being 
considered  as  pirates. (i') 

Similar  prohibitions  are  contained  in  the  municipal  laws 
of  most  countries  ;  and  it  may  be  doubted  whether  cruising 
under  commissions  from  two  or  more  different  powers  be 
permitted  by  the  law  of  nations.  An  opinion  is  expressed 
by  D'Habreu,  Tratado  de  las  Presas^  Part  2.  c.  1.  ^  7.  that 
the  taking  commissions  from  two  or  more  different  princes 
allied  in  the  same  war  may  be  justifiable.  But  this  dis- 
tinction is  rej^■cted  by  Valin,  who  urges  against  it  the  con- 
clusive objection  that  though  the  two  princes  or  states  may 
be  allies,  one  or  the  other  of  them  may  be  in  amity  with  a 
power  with  whom  the  other  is  at  war ;  and  that  consequent- 
ly to  indulge  such  a  deviation  from  the  general  rule  might 
compromit  the  rights  of  the  sovereign  and  the  peace  of  the 
country.  And  Sir  Leoline  Jenkins  considers  those  who 
commit  depredations  under  commissions  from  two  or  more 
sovereigns  or  states,  as  pirates  in  the  same  degree  with 
those  who  cruize  without  any  commission.(i) 

8.  The  conduct  of  public  vessels  of  war,  or  of  private 
armed  vessels  commissioned  as  letters  of  marque,  is  regu- 

(o)  4  Laws  U.  S  3— Vide  3  Dallas,  133.  Talbot  vs.  Janson.  2  7>«.'/af, 
321,  The  United  States  vs.  Guiiiet. 

(J')   Ordonnance  de  la  Jlfurine,  L.  3.  tit,  9.  da  Priees,  art.  ?, 

C*")  Sir  L.  JenkirCs  Works,  7U, 


48  LAW   OF  CHAP.    II. 

lated  by  instructions  from  the  sovereign,  or  suprenie  exe- 
cutive power  of  the  state. 

Thus  by  the  prize  act  of  1812,  the  President  of  the  Uni- 
ted States  is  authorized  to  establish  and  order  suitable  in- 
structions for  the  better  governing  and  directing  the  cpn- 
duct  of  vessels  commissioned  according  to  the  act,  their 
pfiicers  and  crews,  copies  of  which  shall  be  delivered,  by 
the  collector  of  the  customs,  to  the  commanders  of  the 
same  when  they  shall  give  bond  as  required  by  the  act. 

Under  this  authority  the  President  issued  on  the  28th 
August,  1812,  an  instruction,, commanding  private  armed 
vessels  not  to  interrupt  any  vessels  belonging  to  citizens  of 
the  United  States,  coming  from  British  ports  to  the  United 
States,  laden  with  British  merchandize,  in  consequence  of 
the  alleged  repeal  of  the  British  orders  in  council.  It  was 
adjudged  to  be  necessary  that  the  instruction  should  either 
have  been  actually  delivered  to  the  privateer,  or  that  she 
fthould  have  been  in  port  after  it  was  issued,  in  order  to 
invalidate  a  capture  made  contrary  to  its  letter  and  spi- 
rit.(0 

So  also  where  a  capture  was  made  by  a  private  armed 
vessel  having  the  instruction  on  board,  a  question  was 
made  whether  the  capture  was  lawful,  and  that  depended 
upon  the  authority  of  the  President  to  issue  this  instruc- 
tion, and  upon  its  true  impori,  if  rightly  issued.  The  lan- 
guage of  the  provision  in  the  prize  act  is  very  general,  and 
it  is  entitled  to  a  liberal  construction  both  upon  the  mani- 
fest intent  of  the  legislature,  and  the  ground  of  public  po- 
licy. 

It  had  been  argued,  that  privateers  acquire,  by  their  com- 
missions, a  general  right  of  capture  under  the  prize  act, 
which  it  is  not  in  the  President's  power  to  narrow  or  re- 
strain, while  the  commission  is  in  foi'ce ;  that  therefore  his 

C)  Tlie  Frances  and  the  Mary,  Supreme  Court  of  tho  U.  S.  February 
Term,  1814.  M.  H. 


AiAUiTfiyii:  CAPTURES  AND  niizcy.  49 

right  to  issue  instructions  must  be  constraicd  as  suborcllntite 
to  tlie  general  authorit)^  derived  from  the  comnnss'ion;  and 
that,  in  this  view,  his  instruction  shoukl  extend  only  to  che 
-internal  organization,  discipline,  and  conduct  of  privuteers. 
But  it  is  very  clear  that  the  President  had,  under  the  prize 
act,  power  to  grant,  annul,  and  revoke  at  his  pleasure  the 
commissions  of  privateers;  and  by  the  act  .declaring  war, 
he  was  authorized  to  issue  the  commissions  in  such  form 
as  he  should  deem  fit.  The  right  of  capture  is  entirely 
derived  from  the  law  :  It  is  not  an  absolute  vested  i'ight 
which  cannot.be.  taken  away  or  modified  by  law  :  It  is  a 
limitcjd  right, 'which  is  subject  to  all  the  restraints  that  the 
legislature  imposes,  and  is  to  be  exercised  in  the  manner 
its  wisdom  prescribes.  The  commission,  therefore,  is  to 
be  taken  in  its  general  terms,  with  reference  to  the  laws 
under  which  it  emanates,  and  as  containing  within  itself  all 
the  qualifications  and  restrictions  which  the  acts,  giving  it 
existence,  prescribe.  In  this  view,  the  coinmis^ion  is  qua- 
lified and  restrained  by  the  power  of  the  President  to  issue 
instructions.  The  privateer  takes  it  subject  to  such  power 
and  contracts  to  act  in  obedience  to  all  the  instructions 
which  the  President  may  lawfully  promulgate. 

Public  policy,  also,  would  confirm  this  construction.  It 
has  been  the  great  object  of  every  maiitimc  nation  to  re- 
strain and  regulate  the  conduct  of  its  privateers :  they  arc 
watched  with  great  anxiety  and  vigilance,  because  they 
may  often  involve  the  nation,  by  irregularities  of  conduct, 
in  serious  controversies,  not  only  with  public  enemies,  but 
also  with  neutrals  and  allies.  If  a  power  did  not  exist  to 
restrain  their  operations  in  war,  the  public  faich  might  be 
violated,  cartels- and  flag§  of  truce  might  be  disregarded, 
and  endless  embarrassments  arise  in  the  negotiations  with 
fort-ign  powers.  Considerations  of  this  weight  and  impor- 
tance are  not  lightly  to  be  disregarded,  and  when  the  lan- 
guage of  the  act  is  so  broad  and  comprehciisive,  the  court 
sta,ted  they  should  noi  feel  at  liberty  to  narrow  or  weaken 


iO  Law  oi  chap.  ir. 

its  force  by  a  construction  not  presented  b}*  the  letter,  or 
spirit,  or  policy  of  the  clause ;  and  were  therefore  of  the 
opinion  that  the  instruction  in  question  was  within  the  au- 
thority delegated  to  the  President  by  the  prize  act.(') 

9.  And  though  such  instructions  may  bind  the  judges  of 
the  prize  courts  of  the  nation  under  whose  authority  they 
are  issued,  where  those  instructions  relax  the  law  of  nations 
in  favour  of  neutrals,  yet  if  they  attempt  to  extend  that 
law  to  the  prejudice  of  neutrals,  they  are  not  conclusive 
upon  the  judges,  whose  decisions  must  in  that  case  be  re- 
gulated by  the  paramount  authority  of  the  law  of  nations. 

It  was  upon  these  principles  that  Sir  James  Mackintosh 
determined  in  the  case  of  the  American  ship  Minerva  in 
the  Prize  Court  at  Bombay,  which  ship  had  been  Captured 
on  a  vo}^age  supposed  to  be  interdicted  under  the  British 
doctrine  which  subjects  to  capture  a  neutral  trade  not  open 
fn  time  of  peace.  The  ship  left  Providence,  Rhode  Island, 
in  August,  1 805  ;  had  touched  at  the  Isle  of  France,  from 
which  place  she  sailed  to  Batavia,  thence  she  went  to 
Tegall  and  Manilla,  and  on  her  voyage  from  this  last  place 
back  again  to  Batavia  she  was  detained.  Her  cargo  con- 
sisted chiefly  of  indigo  and  dollars.  It  appeared  that  she 
was  under  the  direction  of  a  supercargo  on  board,  as  to  her 
employment  in  trade,  both  in  respect  of  the  cargoes  and  the 
intermediate  ports  to  which  she  was  to  trade,'  previously'  to 
her  return  to  Providence,  or  some  other  port  in  America, 
where  her  voyage  was  to  end.  For  the  captors,  it  was  con- 
tended that  she  was  trading  between  enemies  colonies,  and 
therefore  acting  in  direct  violation  of  the  letter  and  spirit 
of  his  majesty's  instructions  of  June,  1803,  which  com- 
niand  the  commanders  of  ships  of  war  and  privateers  not 
to  seize  any  neutral  vessel  which  should  be  carrying  on 
trade  directly  between  the  colonies  of  the  enemy  and  the 

(')  Ter  Stoiit,  .T.  Tlic  Thomas  Gibbons,  Supreme  Court  of  the  U,  ?., 
rcbruary  Term,  1814.  M.  S. 


MARITIME    CAPTURES    AND    PRIZE?.  51 

tifiutral  country  to  which  the  vessel  belonged.  For  the 
claimants  it  was  insisted,  that  neither  Manilla,  nor  Batu- 
via,  nor  the  Isle  of  France  were  enemies  colonies  of  such 
a  nature,  as  to  render  the  trading  thereto  by  a  neutral  in 
time  of  war  illegal ;  inasmuch  as  the  trade  to  those  places 
was  open  in  time  of  peace.  The  court  had  directed  com- 
missions to  be  sent  to  Bengal  and  Madras,  to  ascertain 
tvhether  the  ports  of  Batavia  and  Manilla  were,  during  the 
last  peace,  operi  to  any  foreigners  from  the  ports  of  India, 
Europe,  or  America;  and  if  open,  whether  uiider  any  and 
what  restrictions ;  and  also  to  enquire  into  the  state  of 
those  ports  in  these  respects  before  the  war  v.Iiich  broke 
out  between  Great  Britain  and  Spain  in  1796.  These  com- 
missionai  being  in  part  returned,  and  it  appearing  that  these 
ports  were  open  to  all  foreigners  during  the  last  peace, 
without  any  restrictions  except  as  to  opium,  and  specie  a* 
the  port  of  Batavia,  Sir  James  Mackintosh  pronounced 
judgment  of  restitution.  The  captors,  he  said,  were  fully 
justified  in  detaining  this  vessel,  because  in  so  doing  they 
were  acting  in  obedience  to  the  letter  of  the  instructions  of 
June,  1803.  Batavia  and  Manilla  v/ere  certainly  colonies 
of  the  enemy,  and  this  vessel  was  certainly  not  trading  di- 
i-ectly  betU^een  America  and  such  colonies.  But  though 
the  ofTicers  in  his  majest^/'s  service  were  bound  to  obev 
these  instructions,  he  did  not  conceive  himself,  sitting  as  a 
judge  of  prize,  in  a  court  whose  decisions  were  to  be  rcgr- 
lated  by  the  law  of  nations,  as  bound  and  concluded  b}' 
them.  He  believed  indeed  that  he  was  the  first  and  only 
judge  who  had  ventured  to  pronounce  such  a  doctrine.  In 
every  court,  in  every  country,  by  all  writers  on  the  sCib- 
ject,  and  all  administrations  of  the  law,  the  instructions  oi 
the  sovereign  were  regarded  as  a  law  to  the  judge.  But; 
he  considered  the  law  of  nations  as  paramount  to  such  in- 
structions ;  and  the  king  as  having  indeed  a  right  to  dis- 
pense with  such  law,  but  not  a  right  to  extend  it.  As  far 
^■herefore  as  any  of  his  majesty's  instructions  were  a  rclaK- 


O-Z  LAW    01  CHAP.   II. 

ation  of  the  law  of  nations  in  fiivour  of  neutrals,  he  should 
considKr  himself  bound  by  them  ;  but  if  he  saw  in  such 
instructions  an}-  attempt  to  extend  ih.e  law  to  the  prejudice 
of  neutrals,  he  should  not  obey  them,  but  ngulate  his  de- 
cisions according  to  the  known  and  recognized  law  of  na- 
tions. In  the  present  case,  after  great  deliberation,  he  felt 
hiinVelf  bound  to  say,'  that  neither  Batavia  nor  Manilla 
werti  such  colonies  as^to^ender  siny  trading  by  netUral 
V  nations,  in  time  of  war,  illegal.  It  is  not  their  being  call- 
ed colonics  that  will  render  such  a  trading  unlawful,  not- 
withstanding the  letter  of  the  instructions  of  1S03;  some- 
thing fiirdicr  is  necessarv,  and  th:it  is,  that  the  trade  to 
and  with  these  colonies  was  prohibited  to  such  neutrals  in 
time*  of  peace. 

"lO.  A  iv.arit* me  capture  is  the 'seizure  of  a  vessel  or 
goods  on  board  the  same,  or  both,  belonging  to  a  real  or 
supj)Osed  enemy,  or  from  some  other  cause  justifiable  by 
the  lau's  ©f  nations,  under  authority  i-ora  the  belligerent 
state  ;  with  the  intent  to  divest  the  aerial  owner  of  the 
property,  and  to  carry  it  into  port  for  adjudicati(Mi  before 
some  competent  court. 

11.  The  time  of  capture  is  to  be  dated  not  from  the  ac- 
tual taking  possession,  but  from  the  striking  of  the  colours, 
which  last  is  to  be  deemed  the  real  deditio  :  Unless  indeed 
the  enemy  succeed  in  defeating  that  surrender,  and  this 
act  of  formal  submission  is  thus  discontinued. (') 

12.  And  a  seizure  under  an  agreement  with  the  neutral 
master  to  bring  in  his  vessel  was  held  to  be  a  legal  cap- 
ture. (") 

So  also  where  it  Avas  objected  to  the  legality  of  a  capture 
that  it  was  defeated  by  subsequent  abandonment  on  the 
part  of  the  captors,  because  one  man  only  was  put  on  board 
from  the  armed  vessel  with  the   consent   of  the  captured, 

'<)  1  nobimoti,223.  T]\cMch6ck:xh. 
(")  (j  Ilohimon  1.1.  TIic  Resolution. 


MARITIME    CAPTURES    AND    PRIZES.  53 

and  the  prize  was  thus  permitted  to  proceed  to  the  port 
of  her  original  destination  ;  it  was  determined  that  the  in- 
ribility  of  the  prize  master  to  secure  the  captured  vessel, 
his  inability  to  bring  in  the  vessel  without  the  aid  of  the 
crew  belonging  U)  her,  were,  in  reason,  no  proof  of  aban- 
donment. If  the  circumstances  of  the  captured  vessel  be 
such  as  to  do  away  all  apprehension  of  rescue,  and  inspire 
confidence  that  the  crew  will  bring  her  into  port,  no  reason 
is  perceived  why  the  property  of  the  captor  may  not  be  re- 
tained as  well  by  a  prize  master  alone,  as  by  a  considera- 
ble detachment  from  the  crew  of  the  capturing  vessel. (^) 

So  also  where  a  merchantman,  which  had  separated  from 
her  convoy  during  a  storm,  and  had  been  brought  toby  an 
enemy's  vessel  of  war,  which  came  up  and  told  the  master 
to  stay  by  her  till  the  storm  moderated,  when  she  would 
send  a  boat  on  board,  it  was  held  to  be  a  legal  capture.  The 
sending  of  a  prize  master  on  board  is  a  very  natural  act  of 
possession,  but  by  no  means  essential  to  constitute  a  cap- 
ture. If  the  merchantman,  asin  this  case,  is  obliged  to  lie 
to  and  obey  the  direction  of  the  enemy's  vessel,  and  await 
her  further  orders,  there  being  no  ability  to  resist  and  no 
prospect  of  escape,  the  capture  must  be  considered  as  con- 
summated.(^) 

But  the  master  or  crew  of  a  neutral  vessel  captured  is  not 
bound  to  assist  in  carrying  the  vessel  into  port  for  adjudi- 
cation, unless  a  compromise  or  agreement  to  that  effect  is 
made  by  them  with  the  commander  of  the  armed  t^essel  ma- 
king the  capture.  They  owe  no  service  to  the  captors,  and 
are  still  to  be  considered  answerable  to  the  ov/ners  for 
their  conduct,  so  that  they  make  no  actual  resistance.  It 
is  the  duty  as  well  as  the  interest  of  the  captors  to  make 
the  capture  sure  ;  and  if  they  neglect  it  from  any  anxiety 

.(")  Per  Marshall,  C.  J.  The  Alexander,  Supreme  Court  of  the  U.  gy, 
February  Term,  1814  M.  S. 

C')  3  Sobinsov.iOS.  Th<3  Edward  and  Mary,  ' 

8 


54  LAW   ft««  CttAP   It, 

to  make  othei*  captures,  or  thinking  the  force  already  fur- 
nished sufficient,  it  is  exclusively  as  their  own  peril.(^  j 

13.  It  results  from  the  above  definition  of  legal  capture 
that  a  taking  by  pirates  has  none  of  the  effects  of  such  a 
capture.  It  does  not  dives,  the  actual  owner  of  the  prop- 
erty, and  cannot  be  followed  by  a  sentence  of  condemnation 
in  a  competent  court.(y)  A  piratis  et  latronibus  capta  do- 
minium non  mutant^  is  the  maxim  of  the  civilians,  which 
has  been  adopted  by  modern  writers  on  public  law.  But 
a  taking  by  pirates  must  not  be  confounded  with  a  capture 
by  non  commissioned  captors.  For,  as  we  have  before 
seen,  a  seizure  of  en-emy's  vessels  in  port,  before  a  declara- 
tion of  war  or  the  issuing  of  letters  of  marque  and  reprisals 
and  of  enemy  vessels  coming  into  port  from  distress  of 
weather,  want  of  provisions,  or  ignorance  of  war;  captures 
made  by  private  armed  vessels  having  letters  of  marque 
against  one  enemy  power  of  the  property  of  another  witfe 
whom  war  had  broken  out ;  and  a  capture  made  by  a  mer- 
chant vessel,  attacked  at  sea  by  an  enemy's  ship,  who  in 
defending  herself  takes  the  ship  of  the  enemy, — are  all  law- 
ful captures,  although  the  prizes  are  condemned  not  to  the 
actual  captors,  but  to  the  sovereign  or  state,  unless  oiher- 
erwise  provided  by  the  municipal  law  of  the  belligerent 
power. 

Though  all  things  belonging  to  the  enemy  are,  generally 
speaking,  subject  to  capture  ;  yet  there  are  certain  excep- 
tions to  this  general  rule. 

14.  Thus  the  rights  of  war  can  only  be  exercised  in  the 
territories  of  the  belligerents,  upon  the  high  seas,  or  in  a 
territory  belonging  to  no  one.  Hence  it  follows  that  hosti- 
lities cannot  be  exercised  within  the  territorial  jurisdiction 

(")  Jlcton,  37.  The  Pennsylvania. 

(v)  Jllbericua  GcntUis  Dc.  3\xre.  HcUi,  L.  3.  c.  4.  Grotins,  Dc  J.  K-  a(* 
P.  L.  3.  c  9.  §  If  l,occcnius,  De  J.  M.  L.  1.  c  3.  No.  4.  Bijnkr.rshoah, 
3.J.P-L.  l.c  17.  Axuniy  Part.  2,  c.  5,  art.  3.  $  12, 


MARITIME    CAPTURES    AND    PRIZES.  55 

of  a  neutral  power  who  is  the  common  friend  of  the  belli- 
gerents.(y) 

This  jurisdiction  extends  to  the  ports,  harbours,  bays, 
and  chambers  formed  by  head  lands  of  the  neutral  power. 
The  usual  addition  allowed  to  this  is  a  distance  of  three 
English  miles,  or  a  marine  league,  or  as  far  as  a  (^)  can- 
non shot  will  carry  from  the  coasts  or  shore.  And  by 
the  laws  of  the  United  States  it  is  provided,  that  the  dis- 
trict courts  shall  take  cognizance  of  complaints,  by  whom- 
soever  instituted,  in  cases  of  captures  made  within  the  wa- 
ters of  the  United  States,  or  within  a  marine  league  ol 
the  coasts  or  shores  thereof. 

Captures  made  by  armed  vessels  stationed  in  a  river  of" 
a  neutral  power,  or  in  the  mouth  of  a  river,  or  in  his  har- 
bours, for  the  purpose  of  exercising  the  rights  of  war  from 
that  river  or  harbour,  are  likewise  invalid.(*)  So  also 
where  a  belligerent  ship,  lying  within  neutral  territory, 
made  a  capture,  with  her  boats,  out  of  the  neutral  territo- 
ry, the  capture  was  held  to  be  invalid.  For  though  the 
hostile  force  employed  was  applied  to  the  captured  vessel 
iijing-  out  of  the  territory  ;  yet  no  such  use  of  a  neutral 
territory  for  the  purposes  of  war  is  to  be  permitted.  This 
prohibition  is  not  to  be  extended  to  remote  uses,  such  as 
procuring  provisions  and  refreshments,  and  acts  of  that  na- 
ture, which  the  law  of  nations  universally  tolerates  ;  but 
no  proximate  acts  of  war  are  in  any  manner  to  be  allowed 
to  originate  on  neutral  grounds.     That  a   ship  should  sta- 

(y)   Grotius,  De  J.  B.  ac  P.  L  3.  c-  4  §  .     Bijnkershoeh,  Q.  J.  1*  L. 

1.  c   8.     Vattel,  L.  3.  c.  7-  §  132.     Martens,  L.  8.   c   6.  §  6.     D'Habreu, 

Tratado  sobre  las  Presas,  Part  1,  c.5.  §14.  Azuni^  Part  2,  c  5.  art.  1.  § 
16.    lb.  Part  2,  c.  1.  art,  6.  §  4- 

C)  5  Robhhson,  15.  The  Vrow  Anna  Gatharlna.  7^.373.  The  Anna. 
Vattel,h.  1  c- 22.  §289.  Bi/nkerBhoe/c,q,.  J.  P.  h.  I.e.  8.  /d  De  Moinni. 
Maris,  c.  2.  §  5.  Martens,  L.  4.  c.  4.  §  4.  .^ziiri,  Part  1.  c.  2.  art.  2. 
§.  IS.     Vide  Bee's  Adm.  Reports,  204.     Soult  v.  L'Aft'icaiuc. 

(=»)  5  Hgbinwi)  373.    The  Ana^ 


bG  JLAVV     on  CIIAl'.  Ij. 

tio  •  herself  on  neutral  territory,  and  send  out  her  boats  on 
hostile  enterprizes,  is  an  act  of  hostility  much  too  imme- 
diate to  be  permitted  :  for  supposing  thnt  even  a  direct /los' 
tile  use  should  be  required  to  bring  it  within  the  prohibi- 
tion of  the  law  of  nations,  nobody  will  say,  that  the  very 
act  of  sending  cut  boats  to  effect  a  capture,  is  not  itself  an 
act  directly  hostile — not  complete  indeed,  but  inchoate,  and 
clothed  with  all  the  characters  of  hostility.  If  this  could 
be  defended,  it  might  as  well  be  said,  that  a  ship  lying  in 
a  neutral  station,  miglit  fire  shot  on  a  vessel  lying  out  of 
the  neutral  territory  ;  the  injury  in  that  case  would  not  be 
consummated  nor  received  on  neutral  ground;  but  no  one 
vrould  say  that  ruch  an  i\ct  would  not  be  a  hostile  act,  im- 
mediately commenced  within  the  neutral  territory ;  And 
what  does  it  signify  to  the  nature  of  the  act  considered  for 
the  present  purpose,  whether  I  send  out  a  cannon  shot  which 
shall  compel  the  submission  of  a  vessel  Ij'ing  at  two  miles 
distance,  or  whether  I  send  out  a  boat  armed  and  manned 
to  effect  the  very  same  tliing  at  the  same  distance  ?  It  is 
m  both  instances  the  direct  act  of  the  vt;ssel  lying  in  neu- 
tral ground  ;  the  act  of  hostility  actually  begins  in  the  lat- 
ter case  with  the  launching  and  manning  and  arming  the 
boat  that  is  sent  out  on  such  an  errand  of  force.  But  di- 
rect hostility  appears  not  to  be  necessary  ;  for  whatever  has 
an  immediate  connexion  with  it  is  forbidden  :  you  cannot, 
withouL  leave,  carrv  prisoners  or  booty  into  a  neutral 
territory,  there  to  be  detained,  because  such  an  act  is  an 
immediate  continuation  of  iiostility.  In  the  same  manner 
an  act  of  hostility  is  not  to  take  its  commencement  on  neu- 
tral ground :  It  is  not  sufficient  to  say  it  is  not  completed 
there — you  are  not  to  take  any  measure  there  that  shall 
lead  to  immediate  violence  ;  you  arc  not  to  avail  yourself 
of  a  station  on  neutral  territory,  making  as  it  were  a  van- 
tage ground  of  the  neutral  country,  a  country  which  is  to 
carry  itself  with   perfect  equality  between  both  bellige" 


MAIllTiaiE    CAi*TURES    AND    riHZF.5!.  57 

rents,  giving  neither  the  one  nor  the  other  any  advau- 
tagcC^) 

Although  the  immunity  of  neutral  territory  from  the  ex- 
ercise of  any  belligerent  act  Is  generally  admitted ;  vet  an 
exception  to  it  has  been  attempted  to  be  raised  in  the  case 
of  an  enemy  vessel  met  on  the  high  seas,  and  pursued  ; 
which  it  is  said  may,  in  the  pursuit,  be  chased  into  the  li- 
mits of  a  neutral  jurisdiction.  The  only  writer  of  eminent 
authority  who  has  maintained  this  anomalous  principle  is 
Bynkershoek,  He  himself  admits  that  he  had  never  seen 
it  mentioned  in  the  writings  of  the  publicists  or  among  any 
of  the  European  nations,  the  Dutch  only  excepted  ;  there- 
by leaving  the  inference  open,  that  even  if  reasonable  in  it- 
self, it  neither  rested  upon  authority,  nor  was  sanctioued 
by  general  usage.  There  is  besides  some  reason  to  be- 
lieve that  he  meant  to  confine  the  doctrine  within  narr;  ner 
limits  than  have  been  since  sought  to  be  givera  to  it.  Be 
this  as  it  may,  it  is  sufficient  to  observe  that  the  extreme 
caution  with  which  he  guards  this  license  to  belligerents  is 
Avholly  inconsistent  vvith  the  exercise  of  it.  For  how  is  an 
enemy  to  be  pursued  in  a  hostile  manner  within  the  juris- 
diction of  a  friendly  power  without  imminent  danger  of  in- 
juring the  subjects  and  property  of  the  latter  ?  Dum  fervet 
opus — in  the  heat  and  animation  excited  against  a  flying 
foe,  there  is  too  much  reason  to  presume  little  regard  will 
be  paid  to  the  consequences  that  may  ensue  to  the  neutral. 

When  the  fact  of  a  capture  within  a  neutral  jurisdiction 
is  established,  the  capture  is  done  awav,  and  the  property 
must  be  restored  notwithstanding  that  it  may  actii..;ly  be- 
long to  an  enemy.  But  it  has  been  held  that  a  suggestion 
of  neutral  territory  cannot  be  sit  up  by  an  individual  ■.  laim- 
ant,  but  that  it  must  proceed  from  the  government,  whose 
territory  is  asserted  to  have  been  violated. (*^) 

(t>)  ,3  Rohimon,  162     The  Twee  Gebrocfiers. 

(0  5  Jtobimon,  15.    The  Vrow  Anna  Catharina.    Z  Bobinson,  163,  la 


.ii-^  LAW  OF  en  A  p.  If. 

±5.  The  practice  of  exchanging  prisoners  taken  in  war 
has  been  gradually  introduced  in  the  place  of  the  older 
practice  of  ransoming,  which  succeeded  to  the  still  more 
antient  practice  of  making  slaves  of  them,  which  again  wa& 
Eubsiitutcd  for  that  of  putting  them  to  death.  It  is  a  prac- 
tice of  a  nature  highly  deserving  every  degree  of  favoura- 
ble consideration,  upon  the  same  principles  as  are  all  other- 
commercia  belli^  by  which  the  violence  of  war  mav  be  al- 
layed, as  far  as  is  consistent  with  its  purposes  ;  and  by 
which,  something  of  a  pacific  intercourse  may  be  kept  up, 
which,  in  time,  may  lead  to  an  adjustment  of  diflerences, 
and  end  ulti-mately  in  peace.  The  cartel-ships  emploved 
in  this  service-  are  therefore  exempt  from  capture  ;  and  are 
protected  in  this  ofRce  both  in  carrying  prisoners,  and  re- 
turning from  that  service. C^)  But  this  service  is  so  highly 
important  to  the  interests  oiF  humanity,  that  it  is  peculiarly 
incumbent  on  all  parties  to  take  car€,  that  it  should  be  con- 
ducted in  such  a  manner  as  rot  to  become  a  subject  of 
distrust  and  jealousy  between  the  two  belligerent  nations. 
It  is  not  a  cjuestion  of  gain,  but  one  on  which  depends  the 
recovery  of  the  liberty  of  individuals  w'ho  may  happen  to 
have  become  prisoners  of  war ;  it  is,  therefore,  a  species  of 
navigation  which  on  every  consideration  of  humanity  and 
policy  must  be  conducted  with  the  most  exact  attention  to 
the  original  purpose,  and  to  the  rules  which  have  been  built 
upon  it,  since,  if  such  a  mode  of  intercourse  is  broken  off, 
it  cannot  but  be  followed  by  consequences  extremely  cala- 
mitous to  individuals  of  both  countries.  It  is  a  species  of 
navigation,  therefore,  which  more  than  any  other  requires 
to  be  narrowly  watched.     There  is  no  way  by  which   this 

JVliis.  And  it  will  be  found  in  all  the  cases  reported  by  Sir  C  Robinson, 
that  tlic  claim  of  territory  was  interposed  by  direction  of  the  neutral  go- 
vcrnincnl  wliose  territory  was  alleged  to  have  been  violated. 

('1)  3  nohiitarn,,  139.    The  Dalfje.     See  also  thc  casE  of  Lu  Gloiroj,5 
Mobinnon,  ll>2,  iiud  the  Mary.    ib.  2»0., 


Maritime  captures  a^jd  phtzes.  5? 

purity  of  conduct  can  be  maintained,  but  by  considering 
the  owner  as  answerable  for  the  due  execution  of  the  sei"- 
vice  on  which  his  vessel  is  employed  :  It  is  the  very  last 
description  of  cases  in  which  the  responsibility  ef  the 
owner  ought  to  be  relaxed.  Cartel-ships  are  subject  to  a 
double  obligation  to  both  countries,  not  to  trade.  To  en- 
gage in  trade  may  be  disadvantageous  to  the  enemy,  or  to 
their  own  country ;  both  countries  are  mutually  engaged 
to  permit  no  trade  to  be  carried  on  under  a  fraudulent 
use  of  this  intercourse ;  all  trade  must,  therefore,  be  held 
to  be  prohibited,  and  it  is  not  without  the  consent  of  both 
.governments  that  vessels  engaged  on  that  service  can  be 
permitted  to  take  in  any  goods  whatever.  The  penalty  of 
confiscation  is  affixed  to  the  abuse  of  the  privileges  of  a 
cartel  ship,  and  whether  the  vessel  belong  to  the  belligerent 
state  or  to  the  enemy  it  is  liable  to  capture  and  condem- 
nation.^) 

16»  A  vessel  with  the  cargo  laden  on  board  sailing  un- 
der a  passport,  safe-conduct,  or  license  from  the  bellige- 
rent state,  whether  the  property  belong  to  the  citizen  or 
subjects  of  the  belligerent  state,  or  to  the  enemy,  is  exempt 
from  capture  by  the  armed  vessels  of  the  belligerent  state. 

A  passport  or  safe-conduct  is  granted  to  protect  the  per- 
sons and  property  of  an  enemy  from  hostilities  within  the 
places  and  times  limited  therein,  'l^hey  may  be  granted 
for  various  purposes  ;  and  it  is  the  sovereign  power  of  the 
state  which  is  to  judge  of  the  expediency  of  granting  them. 

But  this  authority  may  be  delegated  to,  and  exercised 
by  its  officers.  Thus  it  is  incidental  to  the  commission 
with  which  an  admiral  or  a  general  is  invested  that  they 
should  have  the  authority  to  issue  these  documents  of  pro- 
tection.(^) 

<<=)  4  Rohinsoii,  355.     The  Venus.     6  Rulnnson,  336.     Tlie  Caroliro 
C)    VatteU  L.  3.  c.  17.  §  ''fi5.     1  lifaH'^form's  Cnn^n»nfari>-.  '^'S>. 


60  LAW    OF  CHAP.   II- 

And  it  is  provided  by  the  laws  of  the  United  States, 
that  if  any  person  shsll  violate  any  safe-conduct,  or  pass- 
port, duly  obtained  and  issued  under  the  authority  of  the 
United  States,  the  person  so  offending,  on  conviction,  shall 
Ke  imprisoned  not  exceeding  three  3'ears,  and  fined  at'  the 
discretion  of  tlie  court. 

17.  Of  the  same  nature  are  licenses  granted  by  the  bel- 
ligtrent  state  to  trade  with  its  enemy.  All  commercial 
intercourse  being  suspendt-d  by  war,  such  tracie  can  only  be 
legalized  by  license  granted  by  the  sovereign  power  of  the 
state,  which  is  alone  competent  to  decide  on  all  the  conside- 
rations of  commercial  and  political  expediency,  by  which 
such  an  exception  from  the  ordinary  consequences  of  war 
must  be  controlled.!,^)  And  these  licenses  are  by  no  meafis, 
as  has  been  common!}^  supposed,  an  invention  of  the  present 
times.  For  Valin,  speaking  of  the  frauds  by  which  the  com- 
merce and  property  of  the  enemy  were  screened  from  capture, 
not  only  on  the  high  seas,  but  even  in  the  ports  of  France — 
observes  that  before  the  Ordinance  on  which  he  was  com- 
menting, no  other  means  of  counteracting  these  frauds  had 
been  discovered  than  that  of  delivering  passports  to  the 
vessels  of  the  enemy  permitting  them  to  trade  with  the 
ports  of  the  kingdom  upon  the  payment  of  a  duty  of  a 
crown  per  ton.  This  was  done  by  an  ordinance  of  1673, 
upon  the  ground  that  as  the  enemies  of  the  king  availed 
themselves  of  neutral  vessels  in  order  to  carry  on  their 
trade  with  France,  good  policy  required  that  by  means  of 
this  tonnage  duty  the  profit  heretofore  acquired  by  neu- 
trals should  be  appropriated  to  the  kingdom. 

18.  And,  finally,  it  has  been  usual  in  maritime  wars  to 
exc-mpt  from  capture  fishing  boats  and  their  cargoes,  both 
from  views  of  mutual  accommodation  between  neighbour- 
ing countries,  and  from  tenderness  to  a  poor  and  industri- 
ous order  of  people.     This  custom,  so  honourable  to  the 

(')  4  Robinson.  Vide  M.  S.    The  CosmoJioUtei 


MARITIME    CAfTURES    AlVD    PUIZES.  61 

humanity  of  civilized  nations,  has  fallen  into  disuse;  and 
it  is  remarkable  that  both  France  and  England  mutually 
reproach  each  other  with  that  breach  of  gond  faith  v/hich 
has  finally  abolished  it.(^) 


('■)  1  Iljbhisan,  SO.     Tlic  Young  Jacob  and  Johanna.     Valin,  Sur  i'Or= 
donnance,  I..  5  tit.  x-     P.nAenL-jil-,  Q.  J.  P.  L.  1.  c.  3. 


m 


fit  LAW    O^,  CHAP.  III. 


CHAPTER  III. 

Of  enemy* s  property  considered  as  an  object  of  capture. 

1.  Subject  to  the  exceptions  mentioned  in  the  forego- 
ing chapter,  all  things  belonging  to  the  enemy  are  liable  to 
capture.  And  such  captures  may  be  made  of  enemy's 
vessels  and  his  goods  laden  therein ;  or  of  enemy's  goods 
laden  in  neutral  vessels. 

2.  By  the  general  usage  of  maritime  nations,  transfers 
of  ships  and  other  vessels  are  made  in  writing.  If  there- 
fore the  vessel  captured  has  been  transferred  from  the 
original  proprietor,  it  seems  reasonable  to  require  the  pro- 
duction of  the  bill  of  sale  in  order  to  determine  the  validi- 
ty of  the  capture. ('')  Where  it  appears  that  the  transfer 
was  made  from  an  enemy  to  a  neutral  during  the  war,  va- 
rious rules  have  been  adopted  by  the  particular  Ordinances 
of  belligerent  nations  as  to  the  effect  of  such  transfers,  and 
to  determine  under  what  circumstances  they  shall  be  deem- 
ed valid,  or  otherwise. 

3.  Thus  by  the  British  order  in  council  of  the  11th  No- 
vember, 180r,  it  was  provided.  That  the  sale  to  a  neutral 
of  any  vessel  belonging  to  his  majesty's  enemies,  shall  not 
be  deemed  to  be  legal,  nor  in  any  manner  to  transfer  the 
property,  nor  to  alter  the  character  of  such  vessel :  and  all 
such  vessels  now  Ijclonging,  or  which  shall  hereafter  belong 
to  any  enemy  of  his  majesty,  notwithstanding  any  sale,  or 
pretended  sale  to  a  neutral,  after  a  reasonable  time  shall 
liavc  elapsed  for  receiving  information  of  this  his  majesty's 

(^)  i  Ilobitmrn,  122.     The  AVclvaart. 


MARITIME    CAPTURES    AND    PRIZED.  63 

order  at  the  place  where  such  sale  was  effected,  shall  be 
captured  and  brought  in,  and  shall  be  adjudged  as  lawful 
prize  to  the  captors. 

And  by  the  French  Regulations  of  the  23d  July,  1704, 
the  10th  October,  1744,  and  the  26th  July,  1778,  it  is  pro- 
vided that  no  such  transfer  to  a  neutral  shall  be  valid  un- 
less made  before  the  declaration  of  war. 

4.  But  as  these  Ordinances  make  no  part  of  the  law  of 
nations,  so  neither  are  they  founded  on  the  principles  of 
justice.-  For  as  ships  are  an  article  of  commerce,  to  pro- 
hibit their  sale  to  neutrals,  is  to  pronounce  an  absolute  in- 
terdiction of  a  branch  of  trade,  which  is  perfectly  innocent 
if  carried  on  with  good  faith,  and  which  ought  not  to  be 
prohibited  by  a  sweeping  rule  founded  upon  an  undistin- 
guishing  presumption  of  fraud,  that  may  as  well  be  applied 
to  any  other  commercial  transaction  as  to  this.  It  is  vain 
to  allege,  in  vindication  of  such  innovations  upon  the  law 
of  nations,  the  example  of  a  similar  regulation  and  practice 
on  the  part  of  the  enemy,  as  is  done  in  the  above  British 
order  in  council.  For  retaliation,  in  order  to  be  just, 
must  strike  only  the  offending  power :  and  the  true  mode 
of  correcting  the  irregular  practice  of  a  nation  is^  by  pro- 
testing against  it,  and  by  inducing  that  coujitry  to  reform 
it :  it  is  monstrous  to  suppose^  that  because  one  country  has 
been  guilty  of  an  irregularity,  every  other  country  is  let 
loose  from  the  laxv  of  nations ;  and  is  at  liberty  to  assume 
as  much  as  it  thinks  ft-Q*)  Nor  have  these  Ordinances  any 
binding  force  even  upon  the  prize  courts  of  the  nation  un- 
der whose  authority  they  are  issued ;  for  all  captures  must 
be  judged  by  those  tribunals  according  to  the  law  of  na- 
tions and  treaties,  and  not  according  to  the  municipal  law 
of  the  belligerent  state.(') 

(^)  1  Robinson,  142.     The  Plad  Oyer. 

(0  Report  of  Sir  George  Lee,&c,  of  the  18tl>  January,  1753.  FovRTB 
PitoposiTios^,    Chap.  11.  Note  f. 


^  ,  LAW    OF  ClIAF.    III. 

5.  The  rules  v.'hich  have  been  laid  down  by  the  Ordi- 
nances of  belligerent  nations  requiring  the  production  of 
tertain  prescribed  proofs  to  ascertain  the  bona  fide  nature 
of  such  transfers,  and  inferring  the  existence  of  enemy  in- 
terests from  the  absence  of  such  proofs,  are  more  just  and 
conformable  to  the  law  of  nations.  I'hus  by  the  French 
regulations  of  the  IJ'th  February,  1694,  the  12th  May, 
1696,  and  the  26th  July,  1778,,  revived  by  decree  of  the 
Consuls  of  the  29th  Frimaire,  8th  year  of  the  Republic,  it 
is  provided,  That  no  vessel  of  enemy  built,  or  originally 
belonging  to  an  enemy  pi-oprietor,  shall  be  considered  as 
neutral,  unless  the  sale  was  made  in  the  presence  of  some 
public  ofBcer,  before  whom  such  transfers  are  usually  made, 
and  unless  the  bill  of  sale  is  found  on  board,  accompanied 
by  a  legal  power  given  by  the  former  owner,  in  case  the 
sale  is  not  made  by  himself, . 

6.  So  also  it  has  been  held  that  such  transfers  made  by 
an  enemy  to  a  neutral  in  time  of  war,  must  be  an  absolute 
and  unconditional  sale.  This  rule  is  •applied  to  guard 
against  the  frauds  which  might  otherwise  be  practised,  and 
by  means  of  v/hich  enemy  interests  might  still  be  preserved 
and  protected  from  capture. ('^)  And  if  the  vessel,  osten- 
sibly transferred,  still  continues  under  the  control  and  ma- 
nagement of  her  former  owner,  and  in  the  same  trade  and 
navigation  in  which  die  was  previously  employed,  these 
circumstances  are  deemed  sufficient  to  make  void  the  trans- 
fer, and  to  indicate  the  continued  existence  of  enemy  inte- 
rests rendering  the  property  liable  to  capture. ('")  This 
last  rule  seems  nothing  more  than  a  just  application  of  the 
principle  of  municipal  law,  by  which  a  sale  or  other  trans- 
fer is  only  valid  where  the  actual  delivery  of  the  thing  ac- 

C)  2  Robinson,  i:i7.  The  Xoydt  Gedacht.  4  lioblnmu  lOD.  Tlie 
Sechs  Gcschwistern. 

(*)  1  Jtohinsbn,  1.  The  VJgilantia.  4  Jiobhiion,  31.  The  Jemmy. 
3  Robimon,  41-    The  Jonge  Amelia  in  the  Portland. 


JilARITIME    CAPTURES    AND    PRIZES.  65 

companies  the  transfer ;  whilst  if  it  still  continues  in  the 
possession  of  the  original  proprietor,  it  is  subject  to  attach- 
ment for  his  debts,  and  if  sold  cannot  be  reclaimed  by  the 
first  vendee.(Q  Thus  it  is  a  maxim  of  the  civil  law,  Tra- 
ditionibiis^  non  nudis  co7iventionibus,  dominia  transferunturj 
which  seems  to  be  peculiarly  applicable  to  transfers  of  en- 
emy's property,  which,  if  such  transfers  were  permitted 
without  an  actual  delivery,  might  easily  be  veiled  with  the 
neutral  character  and  effectually  guarded  from  capture. 

7.  If  on  the  other  hand  bo  transfer  has  been  made,  as 
the  laws  of  most  maritime  countries  require  ships  and 
vessels  to  be  registered  in  a  public  registry,  the  certificate 
of  registry  is  the  proof  naturally  to  be  looked  for.  And 
as  the  same  laws  require  that  the  master  and  a  certain 
proportion  of  the  crew  of  the  vessel  should  be  of  the  na- 
tion whose  flag  she  bears,  the  national  character  of  the 
vessel  must  be  determined  by  those  laws. 

Besides  these,  the  following  proofs  of  property  in  the 
vessel  and  cargo  are  usually  required. 

Ist^  The  Passport  ot  Sea  Letter.  This  is  a  permission 
from  the  neutral  state  to  the  master  of  the  vessel  to  pro- 
ceed on  the  intended  voyage,  and  usually  contains  his  name 
and  residence,  the  name,  description,  and  destination  of 
the  vessel,  with  such  other  matters  as  the  local  law  and 
practice  require.  According  to  those  treaties  which  de- 
termine the  character  of  the  goods  by  that  of  the  vessel 
on  board  of  which  they  are  laden,  and  consequently  that 
free  ships  shall  make  free  goods,  this  is  the  only  document 
or  proof  of  property  required.  So  also  by  the  treaties 
between  different  maritime  nations,  and  Turkey  and  the 
Barbary  powers,  it  is  stipulated  that  the  production  of  a 
pass  from  the  government  whose  flag  the  vessel  bears  shall 


(0  Poihier,  De  Pt'opri4tS,  No.  2^5-  247.    3  Coke,  R.  80.  b.  Twine's 
Case. 


QQ  CAW  or  eWAP.  111. 

be  conclusive  evidence  of  the  property,  and  shall  exempt 
the  vessel  and  cargo  from  further  search  and  detention. 

2d.  The  Muster  Roll,  or  i?o/e  d'' Equipa^e^  contains  the 
names,  ages,  quality,  and  national  character  of  every  per- 
son of  the  ship's  company. 

3d.  The  charter  party ;  if  the  vessel  has  been  let  to 
hire. 

4th.  The  bills  of  lading,  by  which  the  master  acknow- 
ledges the  receipt  of  the  goods  specified  therein,  and  pro- 
mises to  deliver  them  to  the  consignee  or  his  order.  Of 
these  there  are  usually  several  duplicates  ;  of  which,  one 
is  delivered  to  the  master,  one  retained  by  the  shipper 
of  the  goods,  and  one  sent  to  the  consignees. 

^th.  The  invoices,  which  contain  the  particulars  and 
prices  of  each  parcel  of  the  goods,  with  a  statement  of  the 
charges  thereon,  which  are  usually  transmitted  from  the 
shippers  to  the  consignees. 

6th.  The  log-book,  or  ship's  journal,  which  contains  an 
accurate  account  of  the  vessel's  course,  with  a  short  history 
of  the  occurrences  during  the  voyage. 

8.  As  the  whole  of  these  papers  may  be  fabricated,  their 
presence  does  not  necessarily  imply  a  fair  case ;  neither 
does  the  absence  of  any  of  them  furnish  a  conclusive  ground 
of  condemnation,  as  has  been  most  unjustly  provided  by 
the  Ordinances  of  certain  belligerent  powers.  As  they 
furnish  presumptive  evidence  only  of  the  property  in  the 
vessel  and  cargo  belonging  to  those  to  whom  it  purports 
to  belong  ;  so  on  the  other  hand  their  absence  affords  only 
presumptive  evidence  of  the  existence  of  enemy  interests, 
which  may  be  rebutted  by  other  proof  of  a  positive  nature 
accounting  for  the  want  of  them  and  supplying  their  place 
according  to  the  circumstances  of  each  particular  case. 
Equally  unjust  and  erroneous  are  the  provisions  of  those 
Ordinances  which  prescribe  what  propoitlon  of  the  vessel's 
crew  shall  be  of  the  nation  whose  flag  she  bears  in  order 
to  entitle  her  to  the  privileges  of  the  national  character; 


I  MARITIME    CAPTURES    AND    PRIZES.  67 

since  it  is  evident  that  this  must  be  determined  by  the 
municipal  law  of  her  own  country. 

It  was  upon  these  principles  that  the  Council  of  Prizes 
at  Paris  determined  in  the  case  of  the  American  ship  Pi- 
gou,  which  had  been  condemned  by  the  inferior  prize 
court  up.on  the  ground  of  the  role  d' Equipage  not  being 
found  on  board  as  required  by  several  French  ordinances. 
The  commissary  of  the  government,  M.  Portalis,  in  his 
Conclusions^  premised,  That  all  questions  of  neutrality  are 
what  are  termed  in  law  questions  regarding  bona  jides. 
He  then  proceeded  to  state  that  neutrality  is  to  be  proved  ; 
and  hence  the  several  regulations  in  the  ordinances  and 
decrees  of  France  which  required  the  neutral  character  of 
vessels  and  their  cargoes  to  be  proved  by  certain  enume- 
rated documents,  among  which  is  mentioned  a  role  cP Equi- 
page in  due  form  ;  but  that  it  would  be  a  gross  error  to 
infer  from  thence  that  the  want  of,  or  a  trifling  irregular- 
ity in  one  of  these  papers,  would  in  every  case  have  the 
eflfect  of  condemning  the  property.  Sometimes  regular 
papers  cover  enemy's  property,  which  other  circumstances 
unmask.  In  other  cases  the  stamps  of  neutrality  break 
through  omissions  and  irregularities  in  the  forms,  origin- 
ating in  mei-e  negligence,  or  grounded  on  motives  free  from 
fraud.  .We  must  therefore  decide  not  merely  by  strict 
forms,  but  by  the  principles  of  good  faith  ;  we  must  say 
with  the  law  that  mere  omissions  and  irregularities  in  the 
forms  cannot  prejudice  the  truth,  if  it  can  be  made  other- 
wise to  appear,  and  si  aliquid  ex  solemnibus  deficmt^  cum 
cquitas  poscii,  subveniendwn  est.  In  conformity  with  these 
reasonings  the  Council  reversed  the  sentence  of  the  inferior 
court  and  decreed  restitution  of  the  ship  and  cargo  to  the 
American  claimant. 

0.  It  is  evident  that  goods  the  property  of  the  enemy 
laden  in  enemy's  vessels  are  subject  to  capture.  But  that 
the  goods  of  a  neutral  laden  on  board  the  vessels  of  \\i\ 
enemy  should   be   subject  to  capture  and  condemnation  l> 


63  LAW    OF  CHAP.    III. 

jnanvfestly  contrary  to  reason  and  justice.  Bat  unreason* 
able  and  unjust  as  this  rule  may  be,  it  has  been  incorpor- 
ated into  the  prize  laws  of  certain  nations,  and  by  them 
enforced  at  different  periods. 

Thus  by  the  French  Ordinances  of  1543  and  1584,  the 
goods  of  a  friend  laden  on  board  enemy's  vessels  are  de- 
clared good  prize.  The  contrary  was  provided  by  the 
Declaration  of  February,  1650;  but  by  the  Ordinance  of 
August^  1681,  L.  3.  tit.  9.  des  Prises,  art.  7.  the  former 
rule  was  again  established.  Valin  and  Pothier  are  able  to 
find  no  better  arguments  in  support  of  this  rule  than  that 
those  who  lade  their  goods  on  board  enemy's  vessels  there- 
by favour  the  commerce  and  navigation  of  the  enemy,  and 
hy  this  act  are  considered  in  law  as  submit?ting  thgmselves 
to  abide  the  fate  of  the  vessel ;  and  Valin  triumphantly 
asks.  How  can  it  be  that  the  goods  of  friends  and  allies, 
found  in  an  enemy's  ship,  should  not  be  liable  to  confisca- 
tion, whilst  those  even  of  subjects  are  liable  to  it  ?  To 
which  Pothier  himself  furnishes  the  proper  answer,  That 
in  respect  to  goods  the  property  of  the  king's  subjects,  in 
lading  them  on  board  enemy's  vessels,  they  contravene  the 
law,  which  interdicts  to  them  all  commercial  intercourse 
with  the  enemy,  and  they  deserve  to  lose  their  goods  for 
the  violation  of  the  law.(^)  And  the  fallacy  of  the  argu- 
ments by  which  this  rule  is  attempted  to  be  supported 
consists  in  assuming  v/liat  requires  to  be  proved,  that  by 
the  act  of  lading  his  goods  on  board  an  enemy's  vessel'the 
neutral  submits  liimself  to  abide  the  fate  of  the  vessel. 
For  it  cannot  be  pretended  that  the  goods  arc  subject  to 
capture  and  confiscation  ex  re,  since  their  character  of  neu- 
tral property  exempts  thcrn  from  this  liability.  Nor  can 
it  be  shewn  that  they  arc  thus  liable  ex  de'dciu,  unlosi  it 
be  shewn  that  the  act  of  thus  lading  theni  on  board  is  aii 

Propri^t^,  Ijfo.  96. 


MARITIME    CAPTURES    AND    PRIZE3.  69 

odence  against  the  law  of  nations.  It  is  therefore  with 
reason  that  Bynkershoek  concludes  that  this  rule,  establish- 
ed by  the  ordinances  of  certain  belligerent  powers  and  in- 
corporated in  some  treaties,  cannot  be  defended  upon  sound 
principles  :  for  why,  he  asks,  should  I  not  be  allowed  to 
make  use  of  my  friend's  ship  to  carry  my  property,  not- 
withstanding his  being  at  war  with  you  ?  If  treaties  do 
not  prohibit,  I  am  at  liberty  to  trade  with  your  enemy; 
and  if  so,  I  may  likewise  enter  into  any  kind  of  contract 
with  him,  buy,  sell,  let,  hire,  &c.  Therefore,  if  I  have 
engaged  his  vessel  and  his  labour,  to  carry  my  goods  across 
the  seas,  I  have  done  that  which  was  lawful  on  every  prin- 
ciple. You,  as  his  enemy,  may  take  and  confiscate  his 
ship,  but  by  what  law  will  you  also  take  and  confiscate  the 
goods  that  belong  to  me,  who  am  your  friend  ?  All  that  £ 
am  bound  to  do,  is,  to  prove  that  they  are  really  mine- 
But  what  shall  we  say,  continues  he,  if  the  owners  of  the 
goods  knew  and  consented  that  they  should  be  shipped  on 
board  the  vessel  of  their  friend,  indeed,  but  of  your  ene- 
my ?  I  should  think  that  this  knowledge  and  consent  do 
not  authorize  a  confiscation.  The  matter  depends  upon 
this  question  onl}',  whether  the  owners  of  the  goods,  in 
shipping  them  on  board  of  an  enemy's  vessel  have  acted 
lawfully  or  unlawfully  ?  I  have  contended  for  the  former 
position,  because,  as  I  may  lawfully  carry  on  any  kind  of 
trade  with  your  enemy,  I  think  that  I  may  therefore  enter 
into  any  kind  of  contract  with  him,  and  make  use,  for  a 
valuable  consideration,  of  his  ship  for  my  own  utility. 
Take  if  you  can,  every  thing  which  belongs  to  your  ene- 
my, but  restore  to  me  what  is  my  own,  because  I  am  your 
friend,  and  in  shipping  my  goods,  I  have  not  intended  to 
do  you  any  injury. ('') 

And  in  conformity  with  these  principles  is  the  doctrine 
of  the  law  of  nations  as  laid  down  by  the  most  eminent 

C^)  Bu Ponceau'' s  Bynkershoek,  c.  13. p.  104; 
10 


70  tAW    OP  CHAP,  III. 

authorities,  from  that  venerable  code  of  public  and  mari- 
time law  the  Conaolato  del  Mare,  to  the  most  modern  writ- 
ers. (') 

10,  A  question  arises  whether  the  captor  of  an  enemy's 
ship  be  entitled  to  freight  upon  the  goods  of  a  neutral 
thus  captured  and  restored  according  to  the  foregoing 
principle.  And  the  Consolato  del  Mare^  c  273,  has  de- 
termined that  the  freight  is  to  be  paid  to  the  captor  by  the 
neutral  in  the  same  manner  as  if  the  voyage  had  been 
terminated.  But  this  determination  is  justly  contested  by 
Bynkershoek,  upon  the  ground  that  the  freight  was  not 
due  to  the  ship  unless  the  goods  had  been  carried  to  their 
destined  port,  or  the  captor  is  ready  to  carry  them  thith- 
cr.(^)  This  doctrine  is  adhered  to  in  practice ;  freight 
being  paid  to  captors  only  where  the  ship  and  cargo  are 
carried  to  the  port  of  their  original  destination  for  adju- 
dication, and  the  former  condemned,  whilst  the  latter  is 
restored :(')  and  to  captors  carrying  the  goods  not  to  the 
actual  port  of  destination,  but  to  the  claimants'  own  coun- 
try ^  and  to  the  ports  to  which  they  would  have  consigned 
them  if  not  prevented  by  the  regulations  of  the  country 
to  which  they  had  actually  consigned  them.('")  But  where 
freight  was  demanded  by  the  captors,  upon  the  ground 
that  the  goods  were  sold  advantageously  for  the  neutral 
claimants  in  the  "country  of  the  captors,  and  at  the  particu- 
lar request  of  the  claimants,  it  was  refused  ;  because  this 
ground  of  distinction  was  held  not  to  be  sufficient  to  take 
the  case  out  of  the  general  rule.    In  all  cases,  except  those 

(')  Consolato  del  Mare,  c.  273.  Grotms,  dc  J.  B.  ac  P.  I,  5.  c.  6.  §26 
Ucinnecius.  De  nav.  ob  vect.  mere.  com.  c.  9.  §  9.  I'attel,  \j.  3.  c.  7-  §  116. 
Jiurlemafjui,  Tome  3.  Part  4.  c.  4.  §  1.  Loccenius,  lie.  J.  M.  L.  3-  c-  4  — 
Voet,  In  Pandect.  L.  49.  tit.  15.  §  5.  Ilubncr,  Tome  1,  c.  9.  §  1.  J^far. 
lent,  L.  8.  c.  6.  §  10. 

C^)  JBynkershoch,  Q.  J.  P.  L.l.  c.  13. 

(')  4  Jiubinson,  278.     The  Fortuiia. 

("•)  5  liobiimn,  67.    The  Diana. 


MARITIME    CAPTURES    AND    PRIZEs'.  71 

before  mentioned,  freight  is  held  not  to  be  due,  although 
the  ship  may  have  performed  a  very  large  part  of  her  in- 
tended vo)'age,  and  so  large  a  portion,  as  to  raise  at  first 
sight  an  appearance  of  hardship  and  injustice  in  the  refu- 
sal of  freight,  and  to  suggest  a  doubt  whether  it  might  not 
be  a  better  rule  to  allow  a  proportion  of  freight  pro  rata 
tteneris  peracti.  But  such  a  rule  would  be  found  to  be 
productive  of  much  practical  injustice,  and  would  lead  to 
endless  litigation  and  uncertainty,  in  the  discussion  of  the 
particular  circumstances  that  would  be  relied  on  in  every 
case.  The  possible  advantage  or  disadvantage  of  an  inter- 
ruption of  the  original  voyage  by  capture,  is  but  an  acci- 
dental circumstance  to  which  a  court  of  prize  will  but 
slightly  attend.  It  would  introduce  a  labyrinth  of  minute 
considerations  through  which  the  court  could  not  find  its 
way.(") 

11.  The  regulations  and  practice  of  certain  nations,  at 
different  periods,  have  not  only  considered  enemy's  goods 
laden  in  neutral  vessels  as  subject  to  capture,  but  have  also 
confiscated  the  neutral  vessels,  on  board  of  which  they  were 
laden.  Thus  by  the  French  Ordinance  of  August,  lQQ\^des 
Prises^  art.  7.  all  vessels  taken  v^ith  enemy's  goods  laden 
on  board  are  declared  good  prize,  Tlie  contrary  rule  had 
been  adopted  by  preceding  Ordinances,  and  was  revived 
by  the  Regulation  of  the  21st  October,  1744,  by  which  it 
was  declared,  That  in  case  there  should  be  found  on 
board  of  neutral  vessels,  of  whatever  nation,  goods  or 
effects  belonging  to  his  majesty's  enemies,  the  goods  or  ef- 
fects shall  be  good  prize,  and  the  vessels  shall  be  restored. 
Valin  admits  that  this  jurisprudence,  which  continued  to 
prevail  in  the  French  courts  of  prize  from  1681  to  1744, 
was  peculiar  to  them  and  to  the  Spanish  ;  but  that  the 
usage  of  other  nations  was  only  to  confiscate  the  goods  of 

(")  6  Robinson,  269.  The  Vrow  Anna  CatliarinJi.  1  Edimvds,  56.-  Th<* 
Fortuna. 


4'^ 


LAV/  or  CHAP.  III. 


the  enemy. C*)     The  Regulation  of  the  21st  October,  1744, 
continued  to  be  observed   in  the   prize  courts  of    France 
from  its  date  until  the  French  revolution  ;  when  by  a  law 
of  the  29th  Nivose,  6th  year  of  the  Republic,  it  was  pro- 
vided that,  The  neutral  or  enemy  character  of  vessels  shall 
be  determined  by  that  of  the  cargo  ;  consequently  every 
vessel  found  at  sea,  laden  in  whole  or  in  part  with  mer- 
chandize  the   product    of    England  or    her    possessions, 
shall  be  pronounced  good  prize,  to  whomsoever  the  said 
merchandize  may  belong.     This  law  was  again  repealed 
by  that  of  the  23d  Frimaire,  Sth  year  of  the  Republic,  and 
by  the  decree   of  the    Consuls  of  the  29th  of   the   same 
month.     The   following  treaties  and  edicts  of  belligerent 
powers  likewise  involve  the  confiscation  of  neutral  vessels 
together   with   their  cargoes,   whether    the  latter  are  the 
property   of  enemies  or   not.     By  the  Treaty  of  the  22d 
August,  1689,  between  Great  Britain  and  Holland,  it  was 
declared,    That  the  contracting  powers,  having  declared 
war  against  the  Most  Christian  King,  it  behoves  them  to 
do  as  much  damage  as  possible  to  the  common  enemy,  in 
order  to  bring  him  to  agree  to  such  conditions  as  may  re- 
store the  repose  of  Christendom  :  and  that,  for  this  end,  it 
was  necessary  to  interrupt  all  trade  and  commerce  with  the 
subjects  of  the  said  king;  and  that,  to  effect  this  they  had 
ordered  their  fleets  to  block  up  all  the  ports  and  havens  of 
France.     And  in  the  2d  and  Sd  article,  it  is  agreed,  That 
they  would  take  any  vessel,  whatever  king  or  state  it  may 
belong  to,  that  shall  be  found   sailing  into   or  out  of  the 
ports  of  France,  and   condemn  both  vessel  and  merchan- 
dize as  lawful  prize  ;  and  that  this   resolution  should   be 
notified  to   all   neutral   states.     By   the   British  Order  in 
Council  of  the  11th  November,  1807,  it  is  declared.  That 
6ill  the  ports  and  places  of  France  and  her  allies,  or  of  any 
i>thcr  country  at  war  with  his  majesty,  and  all  other  ports 

(")  Valin,  Sur  TOfdonnance,  L.  3.  tit.  9.  des  Prise?,  art.  7- 


MARITIME    CAPTU11E.S    AM)    Pr.IZES.  Yo 

and  places  in  Europe,  from  which,  although  not  at  war  with 
his  majesty,  the  British  flag  is  excluded,  and  all  ports  or 
places  in  the  colonies  belonging  to  his  majesty's  eneiviies, 
.shall,  from  henceforth,  be  subject  to  the  same  restrictions  in 
point  of  trade  and  navigation,  as  if  the  same  were  actually 
blockaded  by  his  majesty's  naval  forces,  in  the  most  strict 
and  rigorous  manner.     And  that  all  trade  in  articles  which 
are  of  the  produce  and  manufacture  of  the  said  countries 
or  colonies,  shall  be  deemed  and  considered  to  be   unlaw- 
ful ;  and  that  every  vessel  trading  from  or  to  the  said  coun- 
tries or  colonies,  shall  be  captured  and  condemned  as  prize 
to  the  captors.     And  by  the  French  decree  issued  at  Mi^ 
Ian  on  the  17th  December,  1807,  it  is  provided,  That  every 
vessel  submitting  to  be  searched   by  English  cruizers,  or 
paying  duties  to  the  English  government,  or  sailing  from 
the  ports  of  England,  and  those  of  the  English  colonies,  or 
countries  occupied  by  English  troops,  shall  be  considered 
as  good  and  lawful  prize,  and  may  be  captured  by  our  ships 
of  war   or  privateers,  and  adjudged  to  the  captors.     It  is 
evident  that  these  edicts,  however  they  may  be  attempted 
to  be  justified,  are  of  a  temporary  nature  only ;  must  cease 
with  the  extraordinary  circumstances  that  gave  birth   to 
ihem  ;  and  could  make  no  permanent  alteration  in  the  law 
of  prize. 

The  above  rule,  by  which  neutral  vessels  are  involved  in 
the  confiscation  of  enemy's  goods  laden  on  board,  seems  to 
have  been  derived  from  a  misapplication  of  that  provision 
of  the  civil  law  which  ordains  the  confiscation  of  the  ship 
as  a  penalty  for  an  unlawful  lading  put  on  board.  Doini- 
niis  7iavis,  si  illicite  aliqiud  in  nave^  vel  ipse^  v!  vectores 
hnposuerint,  navis  quoque  jisco  vindicatur.  Ff.  De  Public. 
Sc  Vectig.  L.  11.  §  2.  It  is  evident  that  this  is  a  mere  fis- 
cal regulation  which  cannot  be  applied  to  an  act,  such  as 
that  of  carrying  enemy's  goods,  which  is  perfectly  lawful  in 
the  neutral,  and  therefore  cannot  induce  the  confiscation  of 
the  vehicle,  which  is  his  property. 


7-1  I.AW    OF  CHAP.  III. 

12.  Auothci-j  and  a  more  difficult  question  presents  it- 
self, regarding  enemy's  goods  laden  in  neutral  vessels  ;  and 
this  is,  whether  the  goods  themselves  are  lawfully  subject 
to  capture  and  condemnation  ? 

The  conventional  law  of  maritime  nations  on  this  ques- 
tion has  fluctuated ;  but  has  most  commonly  decided  that 
free  ships  should  make  free  goods.  The  customary  law  and 
practise  of  those  nations  has  varied  less,  and  has  generally 
determined  that  enemy's  property  on  board  the  ships  of  a 
friend  should  be  liable  to  capture  and  condemnation. 

Without  going  ba<;k  beyond  the  middle  of  the  seventeenth 
century,  the  times  preceding  which  partake  too  little  of  the 
spirit  of  civilization  and  humanity  to  furnish  precedents  of 
conventional  law  for  the  present  age,  we  may  enumerate 
the  treaties  mentioned  in  the  margin  which  sanction  the 
principle  thaty/ce  ships  make  free  goods.^^ 

(p)  The  treaty  of  1646  between  France  and  Holland.  Of  1655  between 
France  .and  tlie  Hanse  Towns.  Of  the  same  year  between  France  and 
England.  Of  1656  between  England  and  Sweden.  Of  1659  between 
Frande  and  Spain.  Of  1661  between  Portugal  and  Holland.  Of  1662,  of 
1678,  and  of  169r  between  France  and  Holland.  Of  1662  and  of  1742 
between  France  and  Denmark.  *0f  1672  between  France  and  Sweden. 
Of  1677  between  PYance  and  England.  Of  1667  and  1670  between  Eng- 
land and  Spain.  Of  1667,  of  1675,  and  of  1679  between  Sweden  and 
Holland.  Of  1668  and  of  1674  between  HolLind  .ind  Engband.  Of  1725 
between  the  Emperoror  of  Germany  and  Spain.  Of  1742  between  Spain 
and  Denmark.  Of  1748  between  Denmark  and  Naples.  Of  1756  between 
Denmark  and  Genoa.  Of  1752  between  Naples  and  Holland.  The  trea- 
ties of  navigation  and  commerce  of  Utrecht,  1713.  The  treaty  of  1720 
between  Great  IJritain  and  Sweden.  The  treaties  of  1721  and  1739  be- 
tween Great  Britain  and  Spain,  confirming  the  treaties  of  Utrecht.  The 
treaty  of  Aix  la  (jhiipellc,  1748,  of  Paris,  1763,  of  Versailles,  1783,  and 
of  commerce  between  Great  Jlritain  and  I'rancc,  1786,  all  confirming  the 
treaties  of  Utrecht.  In  the  negotiations  at  Lisle  in  1797,  between  Great 
T^ritain  and  France,  it  was  proposed  by  the  liritish  plenipotaitiary  to  re- 
new tlicse  treaties  confirmatory  of  tliose  of  Utrecht;  which  proposition 
vas  oI)jcctcd  to  by  tlic  Frcncli  ))l(;nipo1tiitiarics  for  sevcr.al  reasons  for- 
eign to  the  present  snhject:  to  wliich  tlic  IJritisli  plenipotentiary,  Lord 
^lalmtsbury,  replied,  that  thejc  treaties  v.ere  bccooie  the  Jaw  of  nfitions. 


MARITIME    CAPTURES    AND    PRIZES.  ;  .) 

The  only  treaties  now  existing,  and  observed  by  the  par- 
ties to  them,  which  adopt  the  principle  th;it  the  character 
of  the  vessel  shall  determine  that  of  the  cargn,  and  that, 

and  that  infinite  confusion  would  result  from  their  not  being-  renewed. 
They  were  not,  however,  renewed  by  the  treaty  of  Amiens  of  1802,  nor 
by  that  of  Paris  of  1814.  Tiie  principle  that  free  sliips  make  free  goods 
was  also  recog-nized  by  the  treaty  of  1778,  between  the  United  Slates  and 
France;  of  1782  between  the  United  States  and  Holland;  and  of  1783> 
between  the  United  States  and  Sweden.  The  same  stipulation  was  con- 
tained in  the  treaty  of  1785  between  the  United  States  and  Prussia ;  but 
this  treaty  having'  expired,  and  a  new  one  having-  been  concluded  in 
1799,  the  article  embracing  this  stipulation  was  not  renewed  :  but  the 
following  was  substituted  in  its  place-  Article  XII.  Experience  having 
proved  that  the  principle  adopted  in  the  twelfth  article  of  the  treaty  of 
1785,  according-  to  which,  free  ships  make  free  goods,  has  not  been  suffi- 
ciently respected  during  the  two  last  wars,  and  especially  in  that  which 
still  continues,  the  two  contracting-  parties  propose,  after  the  return  of  a 
general  peace,  to  agree  either  separately  betv/een  themselves,  or  jointly 
with  other  powers  alike  interested,  to  concert  with  the  great  maritime 
powers  of  Europe,  such  arrangements  and  such  permanent  principles>  as 
maj  serve  to  consolidate  tl)e  liberty  and  safety  of  neutral  navigation  and 
commerce  in  future  wars.  And  if  in  the  interval  eitiier  of  the  contract- 
ing parties  should  be  engaged  in  a  war,  to  which,  the  other  should  remain 
neutral,  the  ships  of  war  and  privateers  of  the  belligerent  power  shall 
conduct  themselves  towards  the  vessels  of  the  neutral  power,  as  favour- 
ably as  the  course  of  the  war  then  existing  may  permit,  observing  the 
principles  and  rules  of  the  law  of  nations  generally  acknowledged.  In 
•1780,  Russia  published  a  declaration  of  what  ate  called  tlie  principles  of 
the  armed  Tietttralitij,  which  were  adopted  by  the  treaties  of  the  same 
year  between  Hussia  and  Sweden  and  Denmark.  To  this  declaration  Hol- 
land acceded  in  1780 ;  Prussia,  and  the  Emperor  of  Germany  in  1781 ; 
Portugal  in  1782;  and  Naples  in  1783.  Among  the  belligerent  powcr.s, 
France,  Spain,  and  the  United  States  acknowledged  its  principles ;  and 
Holland  having  become  subsequently  involved  in  the  war,  the  British  go- 
vernment oflcred  to  make  peace  with  her  on  the  basis  of  the  treaty  of 
1674  between  Great  Britain  and  the  Republic  :  a  treaty,  by  which  tlie 
principles  of  the  armed  neutrality  are  established  in  their  widest  extent. 
Jtlr.  Secretary  F»x's  letter  to  Ji-Iv  Scmolin,  the  liussian  niimster  in  London, 
4th  May,  1782-  These  principles  were  again  recognized  by  the  convention 
of  1800  between  llie  United  St.ites  and  France,  and  were  renewed  by  the 
second  armed  neutrality  of  18U1 ;  which  wat>  dissolved  by  the  navjtl  power 
of  Great  Brltulnjand  the  particular  princir.le  in  question  relinquislied  by 


j\i  LAW    or  CHAP.   111. 

consequently,  y}vv'  ships  shall  make  free  roods^  are  the  fol- 
lowing. 

By  the  I5ih  article  of  the  treaty  of  the  27t\'\  October, 
1/^95,  between  the  United  States  and  Spain,  it  is  stipulated 
that  free  ships  shall  give  freedonfi  to  goods,  and  that  every 
thing  shall  be  deemed  free  and  exempt  which  shall  befoitrid 
on  board  the  ships  belonging  to  the  subjects  of  either  of  the 
contracting  parlies,  although  the  v/hole  lading,  or  anx-  part 
thereof,  should  appertain  to  the  enemies  of  either  :  Contnt- 
band  goods  baing  always  excepted. 

By  the  23d  article  of  the  treaty  of  the  10th  July,  1654, 
between  the  Republic  of  England  ai.d  the:  king  of  Portu- 
gal, it  is  pro-.'ided,  That  all  goods  iaid  merchandize  of  the 
said  Republic  or  King,  or  of. their  p:-^  'e  or  subjects,  found 
on  board  the  ships  of  the  enemies  of  either,  shall  be  made 
prize,  together  vath  the  ships,  and  confiscated.  But  all 
the  goods  and  merchandize  of  the  enemies  of  either,  on 
board  the  ships  of  either,  or  of  their  people  or  subjects, 
shall  remain  free  and  untouched. 

It  has  been  decided  in  the  English  courts  of  prize  that 
the  former  provisiorw  of  this  article  which  subjects  to  con- 
demnation the  goods  of  either  of  the  high  contracting  par- 
ties found  on  board  the  ships  of  the  enemy  of  either,  could 
not  be  fairly  applied  to  the  case  of  property  shipped  before 
the  contemplation  of  war,  and  before  the  vessel  herself  had 
acquired  a  hostile  character.  In  this  adjudication  it  was 
observed,  that  it  did  not  follow,  that,  because  Spanish  pro- 
perty put  on  board  a  Portuguese  ship,  would  be  protected 
in  the  event  of  the  occurrence  of  war  between  England  and 

Riissla  :  enotTiy's  property  on  board  nctitral  vessels  beinjic  liable  to  capture 
and  confisci'-tion  by  the  convention  of  tl>e  5lh  June,  1801,  between  Great 
llritain  and  lliissjia.  In  1807,  in  consequence  of  the  treaty  of  Tilsit  with 
IVance,  a  dcciaration  was  issued,  by  wJiich  the  principles  of  the  armed 
neutrality  were  proclaimed  anew,  and  the  convention  of  1801,  annulled. 
In  1812  a  treaty  of  alliance  was  signed  between  Great  Britain  and  Rus- 
sia;  but  no  treaty  of  commerce  and  navigation  iias  been  concluded  be- 
tween the  two  powers  since  that  of  1801. 


ilARITIME    CAP'tURES    AND    PRIZES.  tT* 

Spain,  therefore  Portuguese  property  on  board  a  Spanish 
ship  should  become  instantly  confiscable  on  the  breaking 
but  of  hostilities  with  Spain  :  that  in  one  case  the  conduct 
of  the  parties  would  not  have  been  diiFerent  if  the  event  of 
hostilities  had  been  kno\^n.  The  cargo  was  entitled  to  the 
protection  of  the  ship  generally  by  the  stipulation  of  the 
treaty  even  if  shipped  in  open  war  j  and  a  fortiori,  if  ship- 
ped under  circumstances  still  more  favourable  to  the  neti- 
trality  of  the  transaction.  In  the  othei-  cdse  there  might 
be  reason  to  suppose  that  the  treaty  referred  only  to  goods 
shipped  on  board  an  enemy's  vessel,  in  an  avowed  hostile 
character ;  and  that  the  neutral  merchant  would  have  acte^ 
differently,  if  he  had  been  apprized  of  the  character  of  the 
vessel  at  the  time  when  the  goods  were  put  on  board.(i) 

(i)  6  lioUhsnn,  29.  The  Marianna.  The  treaty  of  1783  between  the  Unlf» 
ed  States  and  Sweden  (which  has  expired)  excepts  from  the  terms  of 
the  article,  importing  confiscation  of  neutral  property  found  on  board  ene^ 
•my's  vessels,  such  goods  and  merchandizes  as  were  put  on  board  before 
the  declaration  of  war,  or  even  six  months  after  the  declaration.  Article 
XVI.  It  is  obvious  that  this  privilege  of  the  neutral  flag  of  protecting 
enemy's  property,  whether  conferred  by  treaty  or  by  the  ordinances  of  bel- 
ligerent powers,  cannot  extend  to  a  fraudulent  use  of  the  flag  to  cover 
enemy's  property  in  the  ship  as  well  as  cargo.  6  Robinson,  358.  The 
Citade  de  Lisbon.  And  when  during  the  war  of  the  American  revolu- 
tion, the  United  States  recognizing  the  principles  of  the  armed  neutrali- 
ty, exempted  by  an  ordinance  of  Congress  all  neutral  vessels  from  cap- 
ture, except  such  as  were  employed  in  carrying  cbntraband  goods,  or 
soldiers,  to  the  enemy  ;  it  was  held  that  this  exemption  did  not  extend 
to  a  vessel  which  had  forfeited  her  privilege  by  grossly  unneutral  con- 
duct in  taking  a  decided  part  with  the  enemy  by  combining  with  his 
subjects  to  wrest  out  of  the  hands  of  the  United  States  and  of  France  the 
advantages  they  had  acquired  over  Great  Britain  by  the  rights  of  war 
in  th?  conquest  of  Dortiinica.  By  the  capitulation  of  that  island,  all 
commercial  intercourse  was  interdicted  with  Great  Britain.  In  the  case 
in  question  the  vessel  was  purchased  by  neutrals  in  London,  who  sup- 
plied her  with  false  and  colourable  papers,  and  assumed  on  themselves 
the  ownership  of  the  cargo  for  a  voyage  from  London  to  Dominica. 
Had  she  been  emplo3'ed  in  a  fair  commerce,  such  as  was  consistent  with 
'*e  riglits  of  neutoality,  her  cargo,  though  the  property  of  an  enenjy 

n 


78  iA"W   OF  CHAP  111* 

A  celebrated  controversial  writer  has  criticised  the  above 
expression  conventional  law  of  nations,  2ls  used  by  those  mo- 
dern champions  of  neutral  rights,  Hubner  and  Schlegel ; 
but  it  is  evident  that  this  criticism  can  only  apply  with 
force  to  its  use  in  an  unlimited   extent.     For,  as  between 
the  nations  stipulating,  a  treaty  must  be  the  law,  1st,  So 
long  as  it  subsists,  2d,  So  long  as  its  provisions  are  to  sub- 
sist by  its  terms.     Such  treaty  must  also  be  the  law  as  be- 
tween the  contracting  parties,  and  all  others  to  whom  its 
provisions,  relaxing  the  primitive  rigour  of  the  customary 
law  of  nations,  are  to  be  extended  ;  and  it  must  be  the  law 
as  between  themselves,  and  to  be  observed  by  them  towards 
all  the  rest  of  the  world,  if  the  provisions  of  the  treaty  be 
declaratory  of  the  original  and  pre-existing  law  of  nations. 
This  last  characteristic  applies  to  the  convention  of  18Q1,' 
between  Great  Britain  and  Russia,  which  Lord  Grenville 
in  his  speech  delivered  in  the  British  House  of  Lords  oh 
the  13th  November,  1801,  states,  and  conclusively  proveSy 
to  be  a  recognition   of  universal   and  pre-existing  rights, 
which,  as  such,  could  not  justly  be  refused  by  the  contract- 
ing powers  to  any  other  independent  state. 

13.  Considering  the  question  in  regard  to  the  customary- 
law  and  practice  of  maritime  nations,  we  shall  find  that  en- 
emy's goods  in  neutral  vessels  were  declared  to  be  liable 
to  capture  by  the  Consolato  del  Mare ,  in  the  273d  chap- 
ter(')  of  which  it  is  laid  down,  that.  If  the  ship  or  vessel 

could  not  be  prize  ;  because  Congress  had  said  by  their  ordinance,  that 
the  rig'hts  of  neutrality  should  extend  protection  to  such  effects  and 
goods  of  an  enemy.  But,  if  the  neutrality  were  violated,  Congress  had 
not  said,  that  such  a  violated  neutrality  shall  give  such  protection  :  Nor 
could  they  have  said  so,  without  confounding  all  the  distinctions  of  right 
and  wrong ;  and  Congress  did  not  mean,  by  tlieir  ordinance  to  ascertain 
in  what  cases  the  rights  of  neutrality  sliould  be  forfeited,  in  exclusion 
of  all  other  cases  ;  for  the  instances  not  mentioned  are  as  flagrant  as  the 
cases  particularized.     2  Banna,  34.  Darby  ct  al  v.    The  Erstern. 

(' )  Chap.  276,  §  1004,  of  M.  Boucher's  French  translation. 


MARITIME    CAPTURES    AND    PRIZES.  79 

which  shall  be  taken,  belong  to  a  friend,  and  the  merchan- 
dize which  she  carries  belong  to  an  enemy,  the  commander 
of  the  armed  ship  or  vessel  may  force  and  constrain  the 
master  of  the  ship  or  vessel,  which  he  has  taken,  to  carry 
into  some  port  the  effects  of  his  enemy  which  are  on  board. 
And  in  conformity  with  this  rule  are  the  authorities  cited 
in  the  margin. (•) 

14.  Bynkershoek  is  of  the  opinion  that  freight  is  not  pay- 
able to  the  neutral  carrier  of  enemy's  property  by  the  cap- 
tor, because  freight  is  not  due,  unless  the  goods  have  been 
carried  to  their  port  of  destination.(*)  But  a  different  rule 
is  laid  down  in  the  Consolato  del  Mare^  which  is  more  rea- 
sonable in  itself,  and  is  supported  by  the  whole  current  of 
authorities.  A  capture  is  considered  as  delivery  ;  and  en- 
emy's goods  are  condemned  ex  re  only,  the  carrier  of  thera 
not  being  guilty  of  any  offence  against  the  la\^  of  nations.  " 

This  rule  is  adopted  by  the  English  prize  courts,  but 
with  so  many  exceptions  and  limitations  that  its  practical 

{«)  Grotivs,  De  J.  B.  ac  P.  L.  3-  c.  6,  §  6.  Heinecms,  De  nav.  ob  vect. 
vet.  mere.  com.  c.  2»  §  9.  Voet,  De  Jure  Militari,  c,  5.  Loccenius,  De 
Jure  Maritimo,  L.  2.  c.  4.  Bynkershoek,  Q.  J.  P.  L.  1.  c.  14.  Vattel,  L, 
3.  c.  7.  §  115.  A:uni,  Part  2,  c.  3.  art.  2.  B'Hubreu,  Tratado  sobre  las 
Presas,  c  9.  No.  3. 

Se  alama  nave,  o  iiavilia^  o  ultra  fusta  che  entrera  in  corm,  o  ne  uscir^f 
0  ci  sard,  si  >  iscontrerd  con  alcuna  nave,  o  7iavilio  di  mercanzia,  fusee  d'a- 
mici,  e  le  mercajizie  che  lui  porterd  sarrano  dHnimici,  la  Ammiraglio  della 
nave,  e  navilio  armato  pud  conHringere  quel  padrone  della  nave,  o  7iaviUo 
che  lui  pigliato  averd,  che  ltd  con  quella  sua  nave  gli  dcbba  poviare  quelle 
che  de  siioi  inimici  sard,  in  loco  che  non  abbia  pavra,  che  i  inmici  non  ne 
li  possono  torre.  Consolato  del  Mare.  Italian  Edit.  Empero  si  la  nav  ho  Jo 
leyn  que  pres  sera  es  de  enemichs ;  e  la  mercaderia  que  ell  aportara  sera 
tambe  de  Enemichs,  lo  Almirall  dela  nav  ho  del  leyn  armat  pot  forcar  y  de^ 
strenyer  aquell  aytal  senyor  de  equella  nav  ho  de  aquell  dit  leyn  que  ell  pres 
havra  que  ell  ab  aquella  sua  nav  li  deja  a  portar  go  que  de  las  enemichs 
sera  :  y  encara  que  ell  so  te  en  sa  nav  ho  en  son  leyn,  tro  que  sia  en  loch  da 
recabre.    lb.  Catalonian  Edit.  Barcelona,  1540. 

(')  Q.  J.  P.  L.  1.  c.  14. 


SSt)  LAW    OF  GHAP.    III. 

efFecHs  almost  destroyed. (")  And,  1st,  It  is  refused  to  a 
neutral  ship  taken  whilst  engaged  in  the  coasting  trade  of 
the  enemy.(^)  2d,  To  a  neutral  ship  engaged  in  the  colo- 
nial trade  of  the  enemy.(^^)  3d,  Where  there  has  been  a 
spoliation  of  papers  by  the  master.(^)  4th,  Upon  the  car- 
riage of  contraband.(> )  As  the  two  first  of  these  excepr 
tions  are  grounded  upon  a  doctrine  peculiar  to  the  British 
courts  of  prize  which  subjects  to  capture  a  neutral  trade 
not  open  in  time  of  peace,  and  as  this  doctrine  makes  no 
part  of  the  law  of  nations,  and  is  not  recognized  in  the 
practice  of  any  other  nation,  it  is  evident  that  these  excep- 
tions have  no  legal  foundation. 

15.  If  the  property  in  the  ship  or  her  cargo  appear  by 
the  papers  found  on  board  to  be  in  the  enemy,  no  liens  in  a 
neutral  claimant,  or  in  a  subject  or  citizen  of  the  belliger- 
ent state,  updfi  the  same,  by  way  of  pledge  for  the  payment 
of  the  purchase  money  or  hypothecation,  are  sufficient  to 
found  a  claim  in  a  prize  court,  and  to  defeat  the  rights  of 
the  captors. 

Thus  where  the  ship  appeared  to  have  been  originally  a 
neutral  vessel  sold  to  a  Spanish  merchant  at  Buenos  Ayres, 
and  seized  on  a  voyage  to  England,  documented  as  belong- 
ing to  a  Spanish  merchant,  and  sailing  under  the  flag  and 
pass  of  Spain ;  a  claim  was  given  on  behalf  of  the  former 
neutral  proprietor,  in  virtue  of  a  lien  which  he  was  said  to 
have  retained  on  the  property  for  the  purchase  money  ;  but 
such  an  interest  was  deemed  not  sufficient  to  support  a  claim 
jn  a  court  of  prize.  Captors  are  supposed  to  lay  their  hands 
on  the  gross  tangible  property,  on  which  there  may  be  ma- 
ny just  claims  outstanding,  between  other  parties,  which  can 

(")  3  Robinson,  304.  The  Atlas.     In  Notis. 

(^)  1  Itobimon,  296.  The  Emanuel. 

(*)  2  Robinson,  186.  The  Immanuel. 

(»)  lb.  104.  The  Rising  Sun. 

^y)  X  Robinsont  28&.  The  Mercuriu§; 


MARITIME    CAPTURES    AND    PUIZES.  bi 

Iiave  no  operation  as  to  them.  If  such  a  rule  did  not  exist, 
it  would  be  quite  impossible  for  captors  to  know  upon  what 
grounds  they  were  proceeding  to  make  any  seizure.  The 
fairest  and  most  credible  documents,  declaring  the  proper- 
ty to  belong  to  the  enemy,  would  only  serve  to  mislead 
them,  if  such  documents  were  liable  to  be  overruled  by 
liens  which  could  not  in  any  manner  come  to  their  knowl- 
edge. It  would  be  equally  impossible  for  the  court  which 
has  to  decide  upon  the  question  of  property  to  admit  such 
considerations.  The  doctrine  of  liens  depends  very  much 
upon  the  particular  rules  of  jurisprudence,  which  prevail 
in  different  countries.  To  decide  judicially  on  such  claims, 
would  require  of  the  court  a  perfect  knowledge  of  the  law 
of  covenant,  and  the  application  of  that  law  in  all  countries, 
under  all  the  diversities  in  which  that  law  exists.  From 
necessity,  therefore,  the  court  would  be  obliged  to  shut  the 
door  against  such  discussions,  and  to  decide  on  the  simple 
title  of  property  with  scarcely  any  exceptions.  Then  what 
is  the  proprietary  character  of  this  ship  ?  She  is  described 
^s  the  property  of  a  Spanish  merchant.  She  is  sailing  un- 
der the  Spanish  flag,  and  is  fully  invested  with  the  Spanish 
character  not  ostensibly  only,  but  actually,  and  in  the  real 
intention  and  understanding  of  the  parties.  The  objection 
that  a  part  of  the  purchase  money  had  not  been  paid  can 
have  but  little  weight,  since  it  is  a  matter  solely  for  the  con- 
sideration of  the  person  who  sells,  to  judge  what  mode  of 
payment  he  will  accept.  He  may  consent  to  take  a  bill  of 
exchange,  or  ]ie  may  rely  on  the  promisory  note  of  the  pur- 
chaser, which  may  not  come  in  payment  for  a  considerable 
time,  or  may  never  be  paid.  The  court  will  not  look  to 
such  contingencies.  It  will  be  sufficient  that  a  legal  trans- 
fer has  been  made,  and  that  the  mode  of  payment  whatever 
it  is  has  been  accepted.  As  to  the  title  of  property  in  the 
goods,  which  were  going  as  the  funds  out  of  which  the  pay- 
ment for  the  ship  was  to  have  been  made.  That  they  were 
going  for  the  paynxent  of  a  debt,  will  not  alter  the  proper- 


S.i  LAW   9F  iCIIAP.    I J  I. 

ty  ;  there  must  be  something  more.  Even  if  bills  of  lading 
are  delivered,  that  circumstance  will  not  be  sufficient,  un- 
less accompanied  with  anunderstanding,  that  he  who  holds 
the  bill  of  lading  is  to  bear  the  risk  of  the  goods,  as  to  the 
voyage,  and  as  to  the  market  to  which  they  are  consigned; 
otherwise,  though  the  security  may  avail  pro  tanto^  it  can- 
not be  held  to  work  any  change  in  the  property.(^) 

And  also  where  a  claim  was  interposed  on  behalf  of  a  sub- 
ject of  the  belligerent  state  for  the  amount  of  a  bottomry 
bond  executed  to  him  by  the  master  of  the  ship,  being  an 
enemy's  vessel,  previous  to  hostilities,  the  claim  was  reject- 
ed. For  the  person  advancing  money  on  bonds  of  this 
nature,  acquires  by  that  act  no  property  in  the  vessel ;  he 
acquires  the  ju^  in  rem^  but  not  t\itjus  in  re,  until  it  has 
been  converted  and  appropriated  by  the  final  process  of  a 
court  of  justice.  The  property  of  the  vessel  continues  in 
the  foimer  proprietor,  who  has  given  a  right  of  action 
against  it,  "but  nothing  more.  If  there  is  no  change  of  prop- 
erty, there  can  be  no  change  of  national  character.  Those 
lending  money  on  such  security,  take  this  security  subject 
to  all  the  chances  incident  to  it,  and  amongst  the  rest,  the 
chances  of  war.  But  it  is  said,  that  the  captor  takes  pum 
mere ;  and  therefore  that  this  obligation  would  devolve 
upon  him.  That  he  is  held  to  take  cutn  onere  is  undoubt- 
edly true  as  -a  rule  which  is  to  be  understood  to  apply, 
where  the  onus  is  immediately  and  visibly  incumbent  upon 
it.  A  captor  who  takes  the  cargo  of  an  enemy  on  board 
the  ship  of  a  friend,  takes  it  liable  to  the  freight  due  to  the 
'owner  of  the  ship  ;  because  the  owner  of  the  ship  has  the 
cargo  in  his  possession,  subject  to  that  demand  by  the  gen- 
eral law,  independent  of  all  contract.  By  that  law  he  is 
not  bound  to  part  with  it  but  on  payment  of  freight ,  he  be- 
ing in  possession  can  detain  it  by  his  own  authority,  and 
wants  not  the  aid  of  any  court  for  that  purpose.     These  are 

C)  6  liobinson,  25,  The  Marianna, 


MARltlME    CAPTURES    AND    PRIZES.  S3 

all  characters  of  the  jus  in  re — of  an  interest  directly  and 
visibly  residing  in  the  substance  of  the  thing  itself.     But  it 
is  a  proposition  of  a  much  wider  extent,  which  affirms  that 
a  mere  right  of   action  is  entitled  to  the  same  favourable 
consideration,   in  its  transfer  from  the  neutral  to  a  captor. 
It  is  very  obvious  that  claims  of  such  a  nature  may  be  so 
framed,  as  that  no  powers  belonging  to  the  prize  court  can 
enable  it  to  examine  them  with  effect.     They  are  private 
contracts  passing  between  parties  who  may  have  an  interest 
in  colluding;  the  captor  has  no  access  whatever  to  the  ori- 
ginal private  understanding  of  the  parties  in  forming  such 
contracts  ;  and  it  is  therefore  unfit  that  he  should  be  affect- 
ed by  them.     His  rights  of  capture  act  upon  the  propert}', 
without  regard  to  secret  liens  possessed  by  third  parties. 
In  like  manner  his  rights  operate  on  such  liens,  where  the 
property  itself  is  protected  from  capture.     Indeed,  it  would 
be  almost  impossible  for  the  captor  to  discover  such  liens 
in  the  possession  of  the  enem)-,  upon  property  belonging  to 
a  neutral;  the  consequence, therefore,  of  allov/ing,  general- 
ly, the   privilege  here  claimed   v/ould   be,  that  the  captor 
would  be  subject  to  the  disadvantage  of  having  neutral  liens 
set  up  to  defeat  his  claims  upon  hostile  property,  whilst  he 
could  never  entitle  himself  to  any  advantage,  from  hostile 
liens  upon  neutral  property. ('') 

So  where  the  claimant  grounded  his  pretensions  on  aliei'^ 
created  on  the  goods,  in  consequence  of  an  advance  mad*-- 
to  the  shippers,  in  consideration  of  the  consignment  by  thn 
claimant's  agent  in  the  enemy's  country ;  and  ob  othe? 
goods,  in  virtue  c>f  a  general  balance  of  account  due  to  the 
claimant  as  the  factor  of  the  shippers.  To  establish  thlri 
fact,  an  order  for  further  proof  was  asked  for,  and  ih€ 
question  was,  whether,  if  proved,  the  claim  could,  in  point 
of  law,  be  sustained?  The  doctrine  of  liens  seems  to  depend 
chiefly  upon  the  rules  of  jurisprudence  established  in  dif- 

(^)  S  Rahhism,  Zl^,    The  Tohngn. 


34  Law  ot  chaf.  hi. 

ferent  countries.  There  is  no  doubt  that,  agreeably  to  the 
cominon  law,  a  factor  has  a  lieu  upon  the  goods  of  his 
principal  in  his  possession;,  for  the  balance  of  accounts  due 
to  him  ;  and  so  has  a  consignee  for  advances  made  by  him 
to  the  consignor.  The  consignor  or  owner  cannot  main- 
tain an  action  against  his  factor,  to  Recover  the  property  so 
placed  in  his  possession,  without'  first  paying  or  tendering 
what  is  thus  due  to  the  facton  But  this  doctrine  is  un- 
known in  prize  courts,  unless  in  very  particular  cases,  where 
the  lien  is  imposed  by  a  general  law  of  the  mercantile 
world,  independent  of  any  contract  between  the  parties. 
Such  is  the  case  of  freight  upon  enemies'  goods  seized  in 
the  vessel  of  a  friend,  which  is  always  decreed  to  the  owner 
of  the  vessel.  The  possession  of  the  property  is  actually 
in  the  owner  of  the  ship,  ■of  which,  by  the  general  mercan- 
tile law  of  all  nations,  he  cannot  be  deprived  until  the  freight 
due  for  the  carriage  of  it  is  paid.  He  has,  in  fact,  a  kind 
of  property  in  the  goods  by  force  of  this  general  law,  which 
a  prize  court  ought  to  respect  and  does  respect.  On  the 
one  hand,  the  captor  by  stepping  into  the  shoes  of  the  ene- 
my owner  of  the  goods,  is  personally  benefitted  by  the  la- 
bour of  a  friend,  and  ought,  in  justice,  to  make  him  the 
proper  compensation  : — and  on  the  other,  the  ship  owner, 
by  not  having  carried  the  goods  to  the  place  of  their  desti- 
nation, and  this  in  consequence  of  an  act  of  the  captor, 
would  be  totally  without  remedy  to  recover  his  freight 
against  the  owner  of  the  goods.  But  in  cases  of  liens  cre- 
ated by  the  mere  private  contract  of  individuals,  depend- 
ing upon  the  diilcrent  laws  of  different  countries,  the  difli- 
rulties  which  an  examination  of  such  claims  would  impose 
upon  the  captors,  and  even  upon  the  prize  courts,  in  decid 
ing  upon  them,  and  the  door  which  such  a  doctrine  would 
open  to  collusion  between  the  enemy  owners  of  the  proper- 
ty and  neutral  claimants,  have  excluded  such  cases  from 
the  consideration  of  these  courts.  The  principal  strength 
of  the  argument  in  favour  of  the  claimant  in  this  case  seem- 


MARITIME    CAPTURES    AND    miZES.  85 

ccl  to  be  rested  upon  the  position,  that  the  consignor  could 
not  have  countermanded  the  consignment  after  delivery  of 
the  goods  to  the  master  of  the  vessel ;  and  hence  it  was 
inferred  that  the  captor  had  no  right  to  intercept  the  pas- 
sage of  the  property  to  the  consignee.  This  doctrine  would 
be  well  founded,  if  the  goods  had  been  sent  to  the  claimant 
upon  his  account  and  risk,  except  in  the  case  of  insolvency. 
But  where  goods  are  sent  upon  the  account  and  risk  of 
the  shipper,  the  delivery  to  the  master  is  a  delivery  to  him 
as  agent  of  the  shipper,  not  of  the  consignee ;  and  it  is 
competent  to  the  consignor,  at  any  time  before  actual  deliv 
very  to  the  consignee,  to  countermand  it,  and  thus  to  pre-- 
vent  his  lien  from  attaching. ('^) 

16.  The  property  in  ships  and  their  cargoes  which  Avas 
enemy's  property  at  the  commencement  of  the  voyage  can- 
not be  transferred  to  a  neutral  in  transkic  so  as  to  protect 
it  from  capture  and  condemnation.  In  the  ordinary  course 
of  things  in  time  of  peace  such  a  transfer  might  be  made. 
When  war  intervenes,  another  rule  is  set  up  by  courts  of 
prize.,  which  interferes  with  the  ordinary  practice.  In  a 
state  of  war,  existing  or  immment,  it  is  held  that  the  pro- 
perty shall  be  deemed  to  continue  as  it  Mas  at  the  time  of 
shipment  until  the  actual  deliv^eiy ;  this  aiises  out  of  a  state 
of  war,  which  gives  a  belligerent  a  right  to  stop  the  goods 
of  his  enemy.  If  such  a  rule  did  not  exist,  all  goods  ship- 
ped in  the  enemy's  country  would  be  protected  by  transfers 
which  it  would  be  impossible  to  detect.  A  transfer  may 
take  place  in  transitUy  where  there  is  no  actual  war,  nor 
any  prospect  of  war,  mixing  itself  with  the  transaction  of 
the  parties :  But  in  time  of  war  this  is  prohibited  as  a  vi- 
cious contract;  being  a  fraud  on  belligerent  rights,  not  on- 

(b)  Per  Washington,  J.  The  Francies,  Supreme  Court  of  the  U.  S.  Fe- 
bruary Term,  1814.  M.  S.  For  a  further  ilhistration  of  the  doctrine  tliat 
the  rights  of  war  operate  only  on  the  res  ipsa,  and  the  onera  attaciilng 
thereon  in  right  of  possession,  see  the  case  of  the  Hoffnung,  6  jRobmson, 
383. 

12 


S(>  XAW    OF  flJAl'.   I J  J. 

ly  in  the  particular  transaction,  but  in   the   great  facility 
ivhich   it  would  necessarily   introduce,   of  evading  those 
rights  beyond  the  possibility  of  detection.     It  is  a  road 
that,  in  time  of  war,  must  be  shut  up  ;  for  although  honest 
men  might  be  induced  to  travel  it  with  very  innocent  inten- 
tions, the  far  greater  proportion  of  those  who  passed,  would 
use  it  only  for  sinister  purposes,  and  with  views  of  fraud 
on  the  rights  of  the  belligerent.     But  would  the  contempla- 
tion of  xvar  have  the  same  eifect  in  vitiating  these  contracts 
as  actual  war  ?    It  cannot  be  said-  that   all* engagements  in 
the  proximity  of  war,  into  which  the  speculation   of  war 
might  enter,  as  for  instance,  v.'ith  regard  to  the  price,  would 
therefore  be  invalid.  The  contemplation  of  war  is  undoubt- 
edly to  be  taken  in  a  more  restricted  sense.  But  if  the  con- 
templation of  war   leads   immediately  to  the  transfer,  and 
becomes  the  foundation  of  a  contract,  that  would  not  other- 
wise be  entered  into  on  the  part  of  the  seller ;  and  this  is 
known  to  be  so  clone  in  the  understanding  of  the  purchaser, 
though  on  his  part  there  may  be  other  concurrent  motives, 
such  a  contract  cannot  be  held  good,  on  the  same  principle 
that  applies  to  invalidate  a  transfer  in   transitu  in  time  of, 
actual  war.     The  motive   may   indeed   be   difficult  to  be 
proved — but  that  will  be  the  difficulty  of  particular  cases  : 
supposing  the  fact  to  be  established,  that  is  a  sale  under  an 
admitted  necessity,   arising  from  a  certain  expectation  of 
war  ;  that  is  a  sale  of  goods  not  in  the  possession  of  the 
seller,  and  in  a  state  where  they  could  not,  during  war,  be 
legally  transferred,  on  accoimt  of  the  frauds  on  belligerent 
rights  ; — the  same  fraud  is  committed  against  the  belliger- 
ent, not  indeed  as  an  actual  belligerent,  but  as  one  who  was, 
in   the  clear  expectation  of  both   the  contracting  parties, 
likely  to  become  a  belligerent,  before  the  arrival  of  the  pro- 
perty whicl\is  made  the  subject  of  their  agreement.     The 
nature   of  both   contracts   is   identically  the  same,   being 
equally  to  protect  the   property  from  capture  of  Avar — not 
indeed  in  either  case  from  capture  at  the  present  moment 


MARITIME    CAPTURES    AND    PRIZES.  87 

when  the  contract  is  made,  but  from  the  danger  of  captures 
when  it  was  likely  to  occur.  The  object  is  the  same  ia 
both  instances,  to  afford  a  guarantee  against  the  same  cris- 
is :  In  other  words,  both  are  done  for  the  purpose  of  elu- 
ding a  belligerent  right  either  present -or  expected.  Both 
contracts  are  framed  with  the  same  animo  fraudandi.,  and 
are  justly  subject  to  the  same  rule.(*^) 

Where  goods  were  shipped  to  be  sold  on  joint  account 
of  the  shipper  and  consignees,  or  on  account  of  the  shipper 
only  at  the  option  of  the   consignee,  and  the  goods  were 
claimed  by  the  consignee,  the  whole  question  as  to  the  ex- 
clusive property  of  the  shipper  in  the  goods  wita  i-csttd  by 
the  captors  upon  the  option  given  to  the   consignee  to  be 
jointly  concerned  or  not  in  the  shipment.     The  court  stated 
that  the  question  of  law  was,  in  whom  the  right  of  proper- 
ty was  vested  at  the  time  of  capture  ?  To  effect  a  change  of 
property  as  between  seller  and  buyer,  it  is  essential  that 
there  should  be  a  contract  of  sale  agreed  to  by  both  par- 
ties ;  and  if  the  thing  agreed  to  be  sold  is  to  be  sent  by  the 
vendor  to  the  vendee,  it  is   necessary  to  the  perfection  of 
the  contract,  that  it  should  be  delivered  to  the  purchaser  or 
to  his  agent,  which  the  master,  to  many  purposes,  is  consi- 
dered to  be.     The  only  evidence  of  a  contract,  such  as  that 
set   up  by  the  claimant,   appeared   in  his  affidavit,  stating, 
that  before  the  declaration  of  war,  he  was  in  the  enemy's 
country,  and  agreed  with  the  shipper  that  the  latter  should 
ship   goods  on  joint  account,  when  the  commercial  inter- 
course between  the  two  countries  should  be  opened ;  and 
that,  in  consequence  of  this  agreement  the  shipment  was 
made.     Yet  the  delivery  of  the  goods  to  the  master  of  the 
vessel,  was  not  for  the  use  of  the  consignee,  any  more  than 
it  was  for  the  use  of  the  shipper  solely  ;  and,  consequently 
it  amounted  to  nothing,  so  as  to  divest  the  property  out  of 

{^)  1  Robitison,  107.    The  Danckebaar  Africaan,  4  Robinson^  207.    Th© 
Gavl  Walter.    5  Robinson,  128,  Tke  Jan  Frederick* 


V 


8$  LAW    OF  CHAP.  Ill 

the  shipper,  until  the  consignee  should  elect  to  take  the 
goods  on  joint  account,  or  to  act  as  the  agent  of  the  ship- 
per. Until  this  election  was  made,  the  goods  were  at  the 
risk  of  the  shipper,  which  was  conclusive  as  to  the  right  of 
property.('^) 

But  as  this  is  merely  a  rule  of  evidence  intended  for  the 
detection  of  fraud,,  it  is  not  applied  to  the  case  of  goods 
transferred  in  transitu  before  the  breaking  out  of  hostili- 
ties, and  not  in  contemplation  of  war  being  commenced. 
The  rule  arises  out  of  a  state  of  war,  and  cannot  be  applied 
to  transactions  originating  in  time  of  profound  peace,  which 
must  be  ji^dged  according  to  the  ordinary  rules  of  com- 
mercc.f*)  Nor  is  it  applied  to  a  consignment  on  cpdit 
made  by  an  enemy  shipper  to  a  neutral  consignee,  where  the 
consignor  learning  after  the  shipment,  that  the  con- 
signee has  become  "a  bankrupt  or  failed,  stops  the  goods  in 
transitu  on  their  passage  to  the  consignee.  For  by  the  mu- 
nicipal law  the  consignor  having  a  right  in  this  case  thus 
to  change  the  consignment,  the  law  of  war  permits  the 
delivery  to  be  made  to  another  neutral  consignee  by 
order  of  the  enemy  shipper. (f)  But  where  the  goods 
had  been  shipped  by  order  and  far  'the  account  and 
risk  of  neutral  merchants,  and  after  the  ship  had  sailed, 
they  signified  that  they  would  not  accept  the  goods, 
and  on  this  refusal,  the  enemy  shipper  wrote  to  another 
neutral  merchant  offering  the  goods  to  him  on  conditions 
of  payment,  which  were  accepted,  and  a  claim  was  given 
for  the  second  consignee,  it  was  determined  to  be  inadmis- 
sible. As  the  bills  of  lading  were  signed  to  the  account 
and  risk  of  the  first  consignees,  and  the  goods  sailed  under 
that  description,  they  were  their  goods,  and  the  shipper  had 
no  right  to  stop  them,  but  on  the  special  contingency  of  an 

(•')  Per  Washing'ton  J.     The   Venus,   Supreme  Court  of  the  U.  S. 
I'ebruary  Term,  1814.     M.  S. 

{")  1  /tohinson,  336.    The  A'^rovv  Margarelha; 
(')  6  Itol/iiison,^221.    The  Constantia. 


MARITIME    CAPTURES    AND    PRIZES.  BD 

^apprehension  of  non-payment.  On  that  event  the  law 
gives  him  a  proprietary  lien  for  his  security,  and  the  right 
of  stopping  the  goods.  In  this  case  it  was  asserted,  that  the 
first  consignees  actually  refused  to  pay  for  the  goods, 
and  therefore  the  event  had  emerged  on  which  the  right  of 
the  consignor  to  stop  is  founded.  The  shipper  might 
have  forced  the  goods  on  the  first  consignees  under  the  or- 
der, and  might  have  compelled  them  to  accept  and  pay. 
But  he  did  not  exercise  that  right,  he  took  the  goods  to 
himself  again,  in  order  to  sell  them  to  another  person,  and 
by  that  act  the  goods  became  again  the  property  of  the  ship- 
per. Then  comes  the  question  which  answers  itself ;  whe- 
ther the  goods  of  an  enemy  can  be  transferred  in  trdinsitir. 
In  time  of  peace,  when  the  rights  of  third  parties  do  not  in- 
tervene, there  may  be  po  objection  to  the  validity  of  a  trans- 
fer of  this  kind.  But  in  time  of  war,  it  would  open  a  door 
to  fraud,  against  which  courts  of  justice  could  never  be  ef- 
fectually protected,  and  therefore  it  has  been  prohibited. (p) 

In  another  case  goods  were  shipped*  and  the  bill  of  la- 
ding was  in  the  name  of  the  consignees,  and  the  invoice 
purported  to  be  on  their  account  and  risk^  A  letter  from 
the  shipper  to  the  consignees,  after  describing  the  goods 
and  the  labour  he  had  employed  in  the  business,  and  sta- 
ting that  they  were  sent  partly  in  the  Fanny  and  partly  in 
the  Frances,  says,  "  I  have  exceeded  in  some  articles  an^l 
have  sent  you  others  not  ordered  r  I  leave  it  with  your- 
selves to  take  the  whole  of  the  tv/o  shipments,  or  none  at 
all,  just  as  you  please.  If  you  do  not  wish  them,  I  will  thank 
you  to  hand  the  invoices  and  letters  over  to  Messrs.  Fa;!- 
coner,  Jackson  Sc  Co  :  I  think  twenty-four  hours  will  allov/ 
you  ample  opportunity  for  you  to  make  up  your  minds  or: 
this  point,  and  if  yoii  do  not.  hand  them  over  within  that 
time,  I  will  of  course  consider  that  you  take  the  whole  !'"* 

It  was  argued  for  the  consignees  and  claimants,  that  by 
the  invoice  and  bill  of  lading,  and  the  true  consl  ruction  of  the 

(-)  6  T^pbiimon,  329,    The  Twsnde  ^'cniTor. 


90  X.AVV'    Ol  CHAP.  ilf. 

shipper'a  letter,  the  property  was  vested  in  them,  liable  to  he 
divested  by  their  rejecting  the  consigrjment  wiihin  twca- 
ty-four  hours  after  receiving  the  letters  ;  that  the  condi- 
tion annexed  to  the  transfer,  WTis  siiUsequent^viot  precedents 
*  But  the  court  could  not  concur  in  this  reasoning.  To 
vest  the  property  in  the  claimants,  a  contract  is  necessary; 
and  to  form  a  contract,  the  consent  of t\v.  parties  is  indispensa- 
ble. Had  the  shipper  in  execution  of  the  consignees'  order, 
consigned  to  them  unconditionally  such  goods  as  they  had 
directed,  the  contract  would  have  been  complete,  and  the 
goods  v/ould  on  being  shipped  haye  become  the  property  of 
the  consignees.  But  the  shipper  had  not  done  this  :  with  the 
goods  which  were  ordered  he  consigned  other  goods, 
expressly  stipulating  that  the  consignees  should  not  take 
the  goods  they  had  ordered,  unless  they  consented,  to  take 
the  whole  quantity  put  on  board  both  vessels.  This,  then, 
was  a  nev/  proposition,  on  which  the  consignees  were  at 
liberty  to  exercise  their  discretion.  They  might  accept, 
or  reject  it,  and  until  accepted,  the  property  must  remain 
in  the  shipper. 

But  the  claimants  prayed  an  order  for  further  proof,  and 
said  that  before  the  capture  of  the  Frances,  the  Fanny  had 
arrived,  and  they  had  consented  to  take  both  cargoes. 

This  application  was  opposed  by  the  captors  upon  the  prin- 
ciple, that  were  the  fact  true  as  alleged  by  the  claimants, 
belligerent  property. cannot  change  its  character  in  transitu. 

Reserving  any  opinion  upon  the  law,  if  this  fact  should 
be  proved,  further  proof  was  ordered,  and  upon  the  produc- 
tion of  the  further  proof  the  property  was  condemned, ('') 

17.  And  contracts  of  purchase  effected  on  the  part  of 
the  IjcUigerent,  but  left  executory  as  to  payment  and 
contingent  on  a  delivery  at  an  ulterior  port  at  the  risk  of 
the  neutral  merchant,  are  not  allowed  in  time  of  war;  the 

C-)  Per  Marshall,  C.  J.  The  Frances,  Supreme  Court  of  the  U.  S. 
February  T..18M. 


MARITIME    CAPTUKKS    A>iD    PHIZES'.  Di 

goods  sailing  under  such  a  contract,  and  taken  in  transitu^ 
are  held  to  be  the  absolute  property  of  the  enemy.  By  the 
civil  and  common  laws  the  nature  of  the  contract  of  sale  ren- 
ders the  thing  sold  at  the  risk  of  the  vendee  until  delivered, 
unless  the  contrary  is  expressly  stipulated  by  the  parties. f') 
It  is  the  liberty  of  making  this  express  stipulation  which  is 
taken  away  by  this  rule  of  the  prize  law,  it  being  so  liable  to 
abuse  for  the  purposes  of  fraud.  When  the  contract  is  made 
in  time  of  peace  or  without  any  contemplation  of  war,  no 
such  rule  exists  ;  but  where  the  form  of  .he  contract  is 
framed  directly  for  the  purpose  of  obviating  the  danger  ap- 
prehended from  approaching  hostilities,  it  is  a  rule  which 
unavoidably  must  take  place.  Where  the  goods  are  to  be- 
come the  property  of  the  enemy  on  delivery,  capture  is 
considered  as  delivery  :  The  captors  by  the  rights 
of  war  stand  in  the  p^ace  of  the  enemy,  and  are  en- 
titled to  a  condemnation  of  goods  passing  under  such  a 
contract,  as  of  enemy's  property. ('^)  The  ordinary  state 
of  commerce  is,  that  goods  ordered,  and  delivered  to  the 
■master  are  considered  as  delivered  to  the  consignee,  whose 
agent  the  master  is  in  this  respect ;  but  that  general 
contract  of  the  law  may  be  varied  by  special  agreement, 
or  by  a  particular  prevailing  practice,  that  presipposes  an 
agreement  amongst  such  a  description  of  merch/u.ts.  In 
time  of  profound  peace  when  there  is  no  fro&pcr..  of  ap- 
proaching war,  there  would  unquestionably  be  nothing  il- 
legal in  contracting,  that  the  whole  risk  should  fall  on  the 
consignor,  till  the  goods  came  into  possession  of  the  con- 
signee. In  time  of  peace  they  may  divide  this  visk  as 
they  please.  In  time  of  war  this  cannot  be  permit! e\  for 
it  would  at  once  put  an  end  to  all  captures  at  sea  j  the  risk 
would  in  all  cases  belaid  on  the  consignor  where  it  suited 
the  purpose  of  protection  j  on  every  contemplation  of  war, 

(>)  Pothier^  Des  Obligations,  No-  7.    De  Vente,  No.  307,  2  Johnson'» 
Reports,  13. 

('')  3  Robinson,  299.   The  Atlas,  4  Robinson,  107.   The  Anna  Catharina. 


92  LAW    OF  CHAP.    III. 

this  contrivaive  would  be  practised  in  all  consignments  from 
neutral  ports  to  the  enemy's  country,  to  the  manifest  de- 
frauding of  all  rights  of  capture  ;  it  is  therefore  considered 
to  be  an  invalid  contract  in  time  of  war ;  or  to  express  it 
more  accurately,  it  is  a  contract,  which,  if  made  in  war,  has 
this  effect  ;  that  the  captor  has  a  right  to  seize  the  property 
and  convert  it  to  his  own  use ;  for  having  all  the  rights  that 
belong  to  his  enemy,  he  is  authorised  to  have  his  taking 
possession  considered  as  equivalent  to  an  actual  delivery 
to  his  enemy  ;  and  the  shipper  who  put  it  on  board  in  time 
of  war  must  be  presumed  to  know  the  rule,  and  to  secure 
himself  in  his  agreement  with  the  consignee  against  the 
contingency  of  any  loss  to  himself  that  can  arise  from  cap- 
ture.(') 

18-  By  the  prize  codes  of  several  nations,  the  want  of 
papers  found  on  board  the  captured  vessel,  and  the  suppres- 
sion, concealment,  or  spoliation  of  papers,  is  considered  as 
furnishing  presumptive  evidence  of  the  existence  of  ene- 
my interests,  and  unless  rebutted  by  contrary  proof  of  a  sat- 
isfactory nature,  as  affording  a  gi-ound  of  condemnation. 
Thus  by  the  French  ordinance  of  August,  1681,  Des^  Prises, 
art.  6,  all  vessels  on  board  of  which  no  charter  party,  bills 
of  lading,  or  invoices  are  to  be  found,  are,  together  with 
their  cargoes,  declaimed  good  prize.  And  by  the  Ordinances 
of  1543,  art.  43,  and  of  1584,  art.  70,  the  throwing  over- 
board of  the  charter  party,  or  other  papers  concerning 
the  lading  of  the  vessel,  is  declared  a  sufficient  cause  of 
condemnation.  Doubts  having  arisen  as  to  the  application 
of  this  rule  of  evidence,  in  cases  where  sufficient  pa- 
pers were  found  remaining  on  board  to  furnish  proof  of  the 
propx'ictary  interest,  the  ordinance  of  the  5th  September, 
1708,  was  rendered  ;  by  which  it  was  provided.  That  every 
captured  vessel,  from  which  papers  have  been  thrown  over 
board,  shall  be  good  prize  together  with  the  cargo,  upon 

(1)2  Robimon,  133.    The  Packet  de  Bilboa. 


MARITIME    CAPTURES    AND    PRIZES*  98 

proof  of  this  single  fact  only,  without  its  being  necessary 
to  examine  into  the  nature  of  these  papers,  or  by  whom 
they  were  thrown  overboard,  nor  whether  sufficient  papers 
were  found  remaining  on  board  to  furnish  evidence  that  the 
vessel  and  the  goods  of  her  lading  belonged  to  friends  or 
allies.  But  this  decision  appearing  too  rigorous  in  prac- 
tice, Louis  the  Fourteenth,  in  a  letter  of  the  2d  February, 
1710,  addressed  to  the  Admiral  of  France,  directed  the 
Council  of  Prizes  to  apply  the  terms  of  this  Ordinance  ac- 
cording to  the  peculiar  circumstances  and  the  subsidiary 
proofs  in  each  case.  Valin  is  of  opinion  that,  though  this 
letter  escaped  the  attention  of  the  framers  of  the  Regula- 
tion of  the  21st  October,  1744,  of  which  the  6th  article  is 
entirely  conformable  to  the  Ordinance  of  the  5th  Septem- 
ber, 1708,  yet  it  ought  to  be  applied  lo  temper  the  rigour 
of  this  article  according  to  circumstances. 

In  the  British  courts  of  prize  spoliation  of  papers  is  in 
all  cases  considered  as  a  proof  of  malajides  ;  and  where  that 
appears,  it  is  an  universal  rule  to  presume  the  worst  against 
those  who  are  convicted  of  it:  it  will  always  be  supposed 
that  such  papers  relate  to  the  ship  or  cargo ;  and  that  it 
was  of  material  consequence  to  some  interests,  that  they 
should  be  destroyed.  (•")  And  where  there  has  been  such 
a  spoliation,  or  a  suppression  of  papers,  farther  proof  is  al- 
ways 6rdered.(°)  But  if  the  master,  or  other  person  con- 
cerned in  the  spoliation  or  suppression,  be  at  the  same  time 
the  owner  of  any  part  of  the  ship  or  cargo,  it  is  considered 
as  sufficient  to  effect  the  condemnation  of  his  share ;  and 
the  misconduct  of  the  master  in  this  respect  is  visited  upon 
the  neutral  owner  of  the  ship  by  refusing  freight  upon  the 
goods  condemned.C**) 

(•n)  1  Robinson,  131.  The  Two  Brothers; 
(">)  2  Robinson,  361.  The  Polly, 
C)  2  Robinson,  104.  The  Rising  Sun*. 
13 


94  LAW    OF  CHAP.  III. 

19.  The  right  of  visitation  and  search  is  a  right  of  belli- 
gerent powers   consequent,  not  merely  upon   the  right  of 
capturing  enemy's  goods  in  neutral  vessels,  but  upon  that 
of  capturing  enemy's  vessels   and  enemy's  goods  laden  on 
board  the  same,  contraband  of  war,  and  vessels  committing 
*a  breach  of  blockade,  or  of  detaining  vessels  transporting 
military  persons  or  despatches  in  the  service  of  an  enemy. 
Even  if  the  rule  th^ktfree  ships  make  free  goodsht  adopted, 
the  exercise  of  this  right  is  essential  in  order  to  determine 
whether  the  ships  themselves  are  neutral,  and  documented 
as  such  according  to  treaties  and  the  law  of  nations.     In- 
deed it  seems  that  the  practice  of  maritime  captures  could 
not  exist  without  it.  Accordingly  the  unanimous  authority 
of  the  writers  on  public  Mw  establishes  this  right  in  the 
armed  and  commissioned  vessels  of  belligerent  states.(P) 

Various  treaties  and  ordinances  of  belligerent  states  pre- 
scribe the  mode  in  which  the  right  of  visitation  and  search 
is  to  be  exercised  so  as  to  prevent  disorder  and  illegal  vio- 
lence. The  earliest  of  these  treaties  is  that  of  the  Pyre- 
nees of  the  17th  November,  1659.  By  the  17th  article  of 
this  celebrated  treaty,  it  is  provided  that.  To  avoid  all  dis- 
order, the  ships  of  the  one  power  shall  not  approach  those 
of  the  other  nearer  than  within  cannon-shot,  and  shall  send 
their  boat  on  board  of  the  merchant  vessel  with  two  or 
three  men  only,  to  whom  the  master  of  the  merchant  ves- 
sel shall  exhibit  the  passports  by  which  shall  be  made  to 
appear,  not  only  the  lading,  but  also  the  place  of  domicil 
or  residence  ;  the  name  of  the  master  and  that  of  the  ves- 
sel, in  order  by  these  means  to  ascertain  whether  she  car- 
ries any  contraband  goods,  and  thai  the  character  of  the 
ship,  as  well  as  the  quality  of  the  master,  may  satisfactorily 

r  {v)  Brjnkcrslioek,  (1.3.  V.Ij.  I.e.  U.  Vattel,  \..  Z.  C.  7-^iU.  Mar- 
tens, L.  8.  c.  6.  §  14.  (JaUiani,  Dc  Doveri  dc  Principi  neutrali  vtrso  1 
Prjncipi  guerrcgiaiUi,  et  de  quesli  verso  i  neutrali.  458.  Lampredi,  Del 
Commcrcio  dc  Popoli  Neutrali  in  Tempo  de  Gcurra.  185.  .7i/(w,  r.iit 
2,  c.  3.  art.  4.  §  2. 


IMARITIME    CAPTURES    AND    PRIZES.  9.^ 

appear.  The  same  rules  are  adopted  by  the  prize  law's  of 
different  nations,  but  are  very  irregularly  obsex-ved  in  prac- 
tice. 

The  penalty  affixed  to  a  violent  resistance  to  the  exer- 
cise of  this  right  by  the  universal  law  and  usage  of  nations, 
is  confiscation.(i)  Thus  by  the  French  Ox-dinance  of  Au- 
gust, 1681,  it  is  provided.  That  eVery  vessel  which  refuses 
to  lower  its  sails,  after  being  thereunto  summoned  by  our 
ships  of  war,  or  the  private  armed  vessels  of  our  subjects, 
may  be  compelled  by  force  ;  and  in  case  of  resistance  and 
combat,  shall  be  good  prize.  L.  3.  tit.  9.  art.  12.  Des 
Prises.  The  same  provision  was  contained  in  the  Ordi- 
nance of  1584,  art.  65  ;  and  is  incoi-porated  into  the  Spa- 
nish Ordinance  of  1718.  Notwithstanding  the  pi-actice  of 
the  British  courts  of  prize  is  in  conformity  with  this 
rule,('^)  there  is  a  singularly  anomolous  case  adjudged  in 
the  English  common  law  courts,  in  which  the  right  of  search 
is  not  only  denied,  but  the  lawfulness  of  x-esisting  its  exer- 
cise is  maixitained.  This  was  the  case  of  an  insurance  in 
England  on  a  ship  belonging  to  subjects  of  Tuscany,  then 
neutral  between  Great  Britain  and  Spain,  laden  with  neu- 
ti'al  property,  and  captured  by  a  Spanish  cruizer  and  car- 
ried into  a  port  of  Spain,  whex-e  she  was  condemned.  The 
fix'st  ground  of  condemnation  which  appeared  in  the  sen- 
tence was,  that  the  ship  had  refused  to  be  searched,  and 
resisted  with  force,  having  fired  on  the  Spanish  cruizer, 
contrary  to  the  above  Ordinance.  The  ship  was  warrant- 
ed neutral ;  and  the  payment  of  the  loss  resisted  upon  the 
ground  of  the  forfeiture  of  her  neutrality  appearing  by  the 

(1)  Vattel,  L.  3.  c.  7-  §  114.  .1:iini,  Part  2,  c.  3.  art.  4.  §  5.  iZ  diriUo 
del'te  genti  givstifica  la  forza  contro  di  chiunqiie  contrasta  o  appone  impedir 
mento  alVesercizio  dell'ahrui  diritto  perfetto  :  dunqite  a  tal  riguardo  potrd 
perseguitarsi  la  nave  neutrale  e  sottoporla  alia  confisca  dichiarandola  hunna 
preda,  come  ha  giuatmnente  stabilito  il  Gius'  convenzionale  delV  Europa,  chr. 
in  qucsta  parte  spicga  il  Diritto  primitivo  e  gencrale  della  natiira.  lb.  J  7, 

(0  1  Robinson^  340.  Tlwi  MvUia. 


06  LAW    OF  CHAP    III. 

sentence  of  condemnation.     Upon  these  facts,  the  court  of 
King's  Bench  were  of  opinion  that  the  insured  were  entit- 
led to  recover,  and  gave  judgment  accordingly.     As  to  the 
alleged  cause  of  condemnation,   the  judges  agreed  that  a 
ship,  warranted  neuti-al,  must  so  conduct  herself  as  not  to 
forfeit  her  neutrality  ;  and  that  if  by  the  wilful  act  of  thp 
master,  she  do  this,  to  the  injur)-  of  the  owners,   it  will 
amount  to  the  offence  of  barratry  :   But  in  this  ease,  it  was 
said,  nothing  of  that  kind  was  imputable  to  him.     That  a 
neutral  ship  is  not  bound  to  submit  to  search,  searching  be- 
ing an  act  of  superior  force,  rather  than  the  exercise  of  a 
right,  which   may   always  be   resisted  when  the  party  is 
able ;  and  the  searcher  who  acts  at  his   peril,  always  pays 
costs,  unless  he  finds  something  on  board  to  justify  him, 
like  the  case  of  custom-house  officers  :  That  this  was  con- 
firmed by  the  practice  of  the    Admiralty,  where  costs  are 
always  given  in  cases  of  improper  detention,  wbich  would 
not  be  done  if  neutral  vessels  were  liable,  at  all  events,  to 
be  stopped :  That  in  the  present, case  there  was  nothing  to 
justify  the  search,  the  cargo  being  neutral:  That  a  ship  is 
only  bound  to  take  notice  of  the  laws  of  the  countries  from 
which,  and  to  which,  she  sails  ;  but  not  the  particular  ordi- 
nances  of  other   pov.^ers  ;  and  that  a  detention,  therefore, 
under  the  authority  of  particular  ordinances  which  do  not 
make  a  part  of  the  law  of  nations,  was  a  risk  within  the 
policy.e) 

Although  the  doctrine  of  this  case,  so  far,  at  least,  as 
relates  to  the  determination  of  the  question  of  municipal 
law  arising  in  it,  was  afterwards  reversed  by  the  same  court 
in  tile  case  of  Garrcls  vs.  Kensington.,  8  T.  R.  23  r  yet  as 
it  has  been  cited  by  a  celebrated  writer  pn  public  law  as  a 
conclusive  authority  against  the  right  of  search  for  mer- 
chandize, it  may  not  be  usth  ss  briefly  to  examine  its  rea- 
soning as  affecting  that  right.;') 

(•-)  Murnhall  on  Insurance,  R.  1-  c.  8-  §  5.     Saloucci  VS.  Johnson. 
(')  Schlegel  en  JS'eutral  Jiijhts.    In  Appendix. 


Maritime  captures  and  prizes.  ^7 

And  this  reasoning  will  be  found  to  be  extremely  incon- 
secuent.    For  thouj^h  it  is  certainly  true  that  the  particular 
ordinances  of  belligerent  powers  have  no  binding  force  as 
a  part  of  the  law  of  nations,  yet  when  they  are  only  decla- 
ra  ory  of  that  law,  and  are  conformable  therewith,  a  con- 
demnation under  their  authority  in  a  court  of  prize  is  not 
the  less   valid  and'  legal.     And   though  it  is  equally  true 
that  the  law  and  practice  of  the  admiralty  condemn  in  costs 
and   damages  the    captor,    who    has  abused   the    right    of 
search,  by  detaining  and  carrying  in  for  adjudication  neu- 
tral vessels  against  which  no  reasonable  cause  of  suspicion 
'exists,  yet  no  instance  can  be  found  of  costs  and  damages 
awarded  against  a  captor  for  stopping  and  searching  a  neu- 
tral  vessel  on  the  high   seas  j  much  less   does  it  depend 
upon  the  event  of  such  search,  v/hether  the  captor  shall  be 
thus  condemned  in   costs  and  damages.     For,  as  Bynker- 
shoek  has  justly  observed,   it   is  lawful  to  detain  a  neutral 
vessel,  in  order  to  ascertain,  not  by  the  flag  merely^  vvhich 
may  be  fraudulently  assumed,  but  by  the  documents  them- 
selves which  are  on  board,  whether  she  is   really  neutral. 
If  then  search  be  a  lawful  act,  how  can  it  be  s  lid    that  it 
may  always  be  resisted  when  the  party  is  able  ?    And  how 
can  it  be  said  that  the  searcher  acts  at  his  peril,  when  the 
award  of  costs  and  damages  against  him  does  not  depend 
upon  the  immediate  event  of  the  search,  but  upon  that  of 
the  further  detention  and  carrying  in  for  adjudication  ?(") 

(")  When  it  is  laid  down  that  there  is  no  rig'ht  of  searcli,  becatise  the 
cruizer  searches  at  the  hazard  of  costs  and  damages  if  he  ^find  notliing,  it 
must  equally  occur  that  this  very  liabilily  in  costs  and  dumai,''ps  is  itself 
the  firmest  security  of  the  right  of  search,  by  eng-ajcintj  vlie  nt-otral's  sub- 
mission to  the  exercise  of  it  under  the  remedy  of  an  indemnifxut  ioij.  That 
the  question  of  costs  and  damages  should  depend  upon  tlie  resull  of  a 
search  is  perfectly  intelligible,  it  being  a  question  of  after  ronsiderai  ion; 
but  that  it  should  depend  upon  the  result  of  a  search  whether  ihar  search 
can  in  limine  be  lawfully  resisted,  is  a  contradiciion  eqiis'lly  in  'rrms  and 
in  meaning.  The  purpose  of  the  resistance  is  to  exclude  the  ktiowiedgie 
of  fhe  fact  which  the  fact  is  to  ascertain;  and  if  the  resistance  is  sue- 


98'  LAW    OF  CHAP.    111. 

The  question  therefore  returns,  resistance  to  search  being 
an  unlawful  act,  what  is  the  penalty  affixed  to  it  by  the  law 
of  nations.     And  wc  have  seen  that  this  penalty  is  confis 
cation. 

But  in  order  to  induce  the  infliction  of  this  penalty,  it 
must  be  shewn  that  the  merchant  .vessel  had  reasonable 
grounds  to  be  satisfied  of  the-  existence  of  war,  otherwise 
there  is  no  such  thing  as  neutral  character,  nor  any  foun- 
dation for  the  several  duties,  which  the  law  of  nations  im- 
poses upon  that  character.  In  a  case,  therefore,  where  at 
the  time  of  sailing  no  war  was  supposed  to  exist,  in  the 
knowledge  or  contemplation  of  the  master,  and  he  was  con- 
sequently unconscious  th^t  he  had  any  neutral  duties  to  per- 
form, a  resistance  to  visitation  arid  search  v,ras  held  to  be 
no  ground  of  condemnation. (*')  So  neither  will  the  forcible 
resistance  of  the  enemy  master  affect  neutral  property  laden 
on  board  his  vessel.  For  an  attempt  on  his  part  to  res- 
cue his  vessel  from  the  possession  of  the  captor  is  nothing 
more  than  the  hostile  act  of  a  hostile  person  who  has  a 
perfect  right  to  make  such  an  attempt.  If  a  neutral  mas- 
ter attempts  a  rescue,  or  to  withdraw  himself  from  search, 
he  violates  a  duty  which  is  imposed  upon  him  by  the  law 
of  nations,  to  submit  to  search,  and  to  be  carried  in  for  en- 
quiry and  adjudication  as  to  the  property  of  the  ship  or 
cargo  ;  and  if  he  violates  this  obligation  by  a  recurrence 
to  force,  the  consequence  will  undoubtedly  reach  the  pro- 
perty of  his  owner  ;  and  it  would,  perhaps,  extend  also  to 
the  whole  property  entrusted  to  his  care,  and  thus  fraudu- 
lently attempted  to  be  withdrawn  from  the  operation  of  the 
rights  of  war.  With  an  enemy  master  the  case  is  very  dif- 
ferent :    No  duty  is  violated  by  such  an  act  on  his  part — 

ccssfiil,  (he  fact  will  remain  unknown  on  which  the  legality  of  the  resist- 
ance is  itself  to  depend.     Crake's  Jlnswev  to  Schlegel. 

(^)  5  Robinson,  33.  The  St.  Juan  J3aptista  ct  al. 


MARITIME    CAPTURES    ASTD    PRIZES.  in) 

lupuni  auribus  teneoy  and  if  he  can  withdraw  himself,  he 
has  a  right  so  to  tlo.(^^) 

The  question  how  far  a  neutral  has  a  right  to  lade  his 
goods  on  board*  an  armed  enemy  vessel,  and  how  far  his 
property  is  involved  in  the  consequences  of  resistance  bv 
the  enemy  master,  was  agitated  during  the  late  war  with 
Great  Britain  in  a  case  celebrated  on  account  of  the  imjxir- 
tance  of  its  principles,  and  the  eloquence  and  ability  with 
which  they  were  discussed. (^)  The  claimant,  a  native  and 
resident  of  Buenos  Ayres  in  South  America,  chartered  a 
British  armed  vessel  for  a  voyage  from  London  to  Buenos 
Ayres  and  back  again  to  London,  and  put  his  goods  on 
board.  The  vessel  sailed  under  convoy  of  two  British  fri- 
gates, but  parted  from  them  before  her  capture.  In  the 
prosecution  of' her  v^age,  and  >yhile  in  sight  of  Madeira, 
where  she  meant  to  stop  in  the  expectation  of  joining  the 
convoy  she  had  parted  fronis  she  was  captured  by  a  private 
armed  vessel  of  the  United  States,  after  having  made  re- 
sistance, in  which  the  claimant  did  not  participate.  Under 
these  circumstances,  the  district  court  condenuied  the  goods 
claimed,  as  prize  of  war  j(>)  a  decree  affirming  the  con- 
demnation, was  entered  pro  Jo?-ma  in  the  circuit  court,  and 
the^cause  was  carried  by  appeal  to  the  supreme  court. 
Three  of  the  judges  of  that  court  were  of  the  opinion,  that 
a  neutral  had  a  right  to  ship  goods  of  his  property  on 
board  a  belligerent  armed  merchant  ship  without  forfeiting 
his  neutral  character,  unless  he  actually  concurred  and  par- 
ticipated'inthe  vessel's  resistance  to^capture.(^)  One  judge 

(»■)  S  Jiohinson-  The  CaUiaviiia  Elizabeth.  J\'e  il  predatore  jnio  avere 
alcnn  diritto  d' inseguirc  la  preda,  die  iibii  area  cu^todila ,-  menlre  era  la  sola 
custodia  quella,  che  poteva  muntcncrlo  in  possesso  ddla  nave  pvedata,  ^■iusta 
i  principi  dei'la  ragion  comnmne.     Azuni,  Part  2,  c.  4.  art.  5.  §  2. 

(>')  The  Nereid.    Supreme  Conrt  of  tlie  U.  S.  February  T.  181  J. 

(v)  Per  Vax  Ness,  J.  District  Court  for  the  Southern  District  of  N. 
Y.  August  9th,  1814. 

(■)  Per  Marsuall,  C.  J.     Wasui>-gto>-  and  Lni>GiTo\.  .'. 


100  LAW    OF  CHAP.    111. 

declined  expressing  anv  opinion  on  that  point,  as  unneces- 
sary ;  because  he  thoiighi   it  suRicieut    to   say  thac  a  mer- 
chant of  Buenos   Ayres,   considerinj^     he  situation  of  his 
country,  the  dangers  of  Carthagena  cruizers,  and  the  risks 
to  which  himself  and  his  property  would  be  subject  in  casp 
of  capture,  was  warranted  by  considerJktions  in  no  way  con- 
nected with  the  war  between  the  United  States  and  Great; 
Britain,  in  availing  himself  of  an*  armed  belligerent  mer- 
chant ship  as  the  only  adequate  means  of  carrying  on  his 
trade,  and    which,  had  been  so  prior  to  the  declaration  of 
war  bv  the  United  States  <•(*)  whilst  the  two  other  judges 
present  dissented  from  the  judgment  of  the  court,  reversing 
the  condemnation  decreed  in  the  courts  below,  and  restor- 
ing the  property  as  claimed. C') 

But  where  the  vessel  was  captureci,  and  possession  taken 
by  sending  three  persons  on  board  her,  who  being  unable 
to  navigate  her,  the  neutral  master  continued  to  direct  her 
course  according  to  the  instructions  of  his  owners,  refusing 
to  carry  the  vessel  into  the  belligerent  port  for  adjudication, 
and  she  was  carried  in  by  another  cruizer ;  it  was  deter- 
mined that  this  was  not  a  case  of  rescue  that  would  sub- 
ject the  vessel  to  confiscation.  The  duty  of  navigating  the 
captured  vessel  into  port  for  adjudication  is  not  imposed  on 
the  master  and  his  crew.  They  owe  no  service  to  the  cap- 
tors, and  are  still  to  be  considered  answerable  to  the  owners 
for  their  conduct.  It  is  the  duty  as  well  as  the  interest  of 
the  captors  to  make  the  capture  sure  ;  if  they  neglect  it 
from  any  anxiety  to  make  other  captures,  or  thinking  the 
force  alreddy  furnished  sufficient,  it  is  exclusively  at  their 
own  peril. (*') 

(")  Per  .Toiivsox,  J. 

('')  Tcr  Duval  unci  Stort,  J. 

(" )  Jlcton,  O.J.   riic  Pennsylvania. 


MARITIME    CAPTURES    AXD    PRIZF.S.  lOl 


CHAPTER  IV. 

The  property  of  persons  resident^  or  having  possessions,  or  a 
house  of  trade  in  the  encmfs  territory ^  considered  as  an, 
object  of  capture, 

1.  The  property  of  persons  domiciled  in  the  enemy's 
country,  is.  liable  to  capture  and  condemnation,  although 
such  persons  may  be  citizens  or  subjects  of  the  belligerent 
state,  or  of  neutral  powers. (') 

2,  The  permanent  character  of  an  enemy  arises  from  the 
party  being  under  the  allegiance  of  the  power  at  war  with 
the  belligerent  state.  The  allegiance  being  permanent,  the 
character  is  permanent*  But  a  neutral  can  be  an  enemy 
only  with  respect  to  what  he  is  doing  under  a  local  or  tem- 
porary allegiance  to  the  power  at  war.  When  the  alle- 
giance determines,  the  character  determines.  He  can  have 
no  fixed  character  of  enemy  who  owes  no  fixed  allegiance 
to  our  enemy,  and  has  ceased  to  be  in  hostility  against  us  ; 
it  being  only  in  respect  of  his  being  in  a  state  of  actual  hos- 
tility that  he  was  even  for  a  time  an  enemy  at  all.  But  a 
person  who  resides  under  the  allegiance  and  protection  of 
a  hostile  cduntry  for  all  commercial  purposes  is  to  be  con- 
sidered to  all  civil  purposes  as  much  an  enemy  as  if  he 
were  born  there. (^) 

(^)  Robinson,  passim.  2  Dallas,  42.  Federal  Court  of  Appeals  io 
Prize  Causes,  1787.  Vantylenger,  Claimant.  1  Magens,  525.  Sir  Le- 
olyn  Jenkins'  letter,  17  September,  1666. 

(i>)  1  Bos.  &  Pul.  163.  Sparenburgh  vs.  Bannatync.,3  Il>,  114.  M'Con* 
nel  vs-  Hector. 

14, 


102  LAW   OF  CHAP.  IV. 

Thus  it  has  been  determined  in  the  courts  of  municipal 
law  that  a  citizen  residing  in  a  foreign  country  might  ac- 
quire the  commercial  privileges  attached  to  his  domicil, 
and  thus  be  exempt  from  the  operation  of  a  law  of  his  orig- 
inal country  restraining  commerce  with  another  foreigtx 
country.(*^) 

So  also  it  has  been  decided  that  a  natural  bom  subject 
might  become  the  citizen  of  a  foreign  country  for  the  pur- 
poses of  commerce,  and  be  entitled  to  all  the  advantages  of 
trade  conceded  by  treaty  between  his  native  country  and 
that  foreign  country;  and  that  the  circumstance  of  his  re- 
turning for  a  temporary  purpose  does  not  deprive  him  of 
those  advantages. (**) 

3.  As  the  person  who  has  a  commercial  inhabitancy  in 
the  hostile  country  has  the  benefits  of  his  situation  so  also  he 
Jnust  take  its  disadvantages,  ^d  comjjiodiim  sent'it^scntire 
debet  et  onus,  is  the  maxim  of  the  civil  law  ;  and  as  in  the 
above  cases,  the  party  was  held  to  acquire  all  the  commer- 
cial privileges  of  a  subject  or  citizen  of  a  foreign  power,  it 
follows  that  he  would  be  subjected  to  the  correspondent 
disadvantages  of  his  situation. 

All  the  citizens  or  subjects  of  the  enemy  who  are  such 
from  a  permanent  cause,  that  is  to  say,  settled  in  the  coun- 
try, are  liable  to  the  law  of  reprisals,  whether  they  be  na- 
tives or  foreigners  ;  but  not  so,  if  they  are  only  travelling 
or  sojourning  for  a  little  time.(')  A  residence  in  a  foreign 
country,  with  an  intention  to  make  it  a  permanent  place  of 
abode  is  styled  doynicil^  and  is  defined  to  be,  a  habitation 
fixed  in  any  place  with  an  intention  of  always  staying  there. 

C'^)  \  Cranchf&5.    Murray  vs.  The  Charming  Betsey. 
C)  8  T.  U.  Wilsoa  vs.  Marryat. 

(<■)  GrotiuB  de  J.  11.  ac  P.  563.  K  is  not  the  place  of  any  man's  nati- 
t>ity,  but  of  his  t/om/ct/.-  not  of  his  origination,  hnt  o^  \\\s  habitation,  that 
subjects  him  to  reprize  :  The  law  cloth  not  consider  so  much  where  ho 
was  born,  as  where  he  lives  ;  not  so  nuicli  where  lie  came  into  tlie  world, 
as  where  he  improves  the  world.    Molhy  dc  J.  M.  B.  1.  c.  2.  XVI. 


MARITIME    CAPTURES    AND    PRIZES.  1D3 

Consequently  a  person  does  not  establish  his  domlcil  in  any- 
place, unless  he  makes  known,  either  tacitly,  or  by  an  ex- 
press declaration,  his  intention  to  establish  himself  there. 
Nor  does  this  declaration  prevent  him,  in  case  he  changes 
his  intention,  from  removing  his  domicil  elsewhere.  The 
natural  or  original  domicil  is  that  which  is  given  us  by 
birth,  where  our  father  had  his  ;  and  we  are  held  to  retain  • 
it,  so  long  as  we  do  not  abandon  it  in  order  to  choose 
another.  The  acquired  domicil,  adscititium^  is  where  we 
establish  ourselves  by  our  own  voluntary  act.(') 

4.  Questions  of  residence  or  domicil  are  of  considerable 
difficulty,  depending  on  a  great  variety  of  circumstances 
hardly  capable  of  being  defined  by  any  general  precise 
fules.  The  active  spirit  of  commerce  now  abi-oad  in  the 
world  still  further  increases  this  difficulty  by  increasing  the 
variety  of  local  situations,  in  which  the  same  individual  is 
to  be  found  at  no  great  distance  of  time  ;  and  by  that  sort 
of  extended  circulation,  by  which  the  same  transaction 
communicates  with  different  countries,  without  enabling  us 
to  assign  the  exact  legal  effect  of  the  local  character  of 
every  particular  portion  of  this  divided  transaction.  Of 
the  few  principles  that  can  be  laid  down  generally,  it  may 
be  held  that  time  is  the  grand  ingredient  in  constituting 
domicil.  In  most  cases  it  is  unavoidably  conclusive.  It 
is  not  unfrequently  said,  that  if  a  person  comes  only  for  a 
special  purpose,  that  shall  not  fix  a  domicil.  This  is  not  to 
be  taken  in  an  unqualified  latitude,  and  without  some  res- 
pect had  to  the  time  which  such  a  purpose  may  or  shall  oc^ 
cupy  ;  for  if  the  purpose  be  of  such  a  nature  as  viay^proha- 
bhf^  or  does  actualhf  detain  the  person  for  a  great  length  of 
time,  a  general  residence  might  grow  upon  the  special  pur- 
pose. A  special  purpose  may  lead  a  man  to  a  country, 
where  it  shall  detain  him  the  whole  of  his  life.  Against 
such  a  long  residence,  the  plea  of  an  original  special  pur» 

(0  VaUel,\.Uc.l%%2lZ. 


104  jLAW-   of  OHAP-   IV. 

pose  could  not  be  averred ;  it  must  be  inferred  in  such  a 
case,  that  other  purposes  forced  themselves  upon  him,  and 
mixed  themselves  with  his  original  design,  and  impressed 
upon  him  he  character  of  the  country  where  he  originally 
resided.  Suppose  a  man  comes  into  a  belligerent  country 
at  or  before  the  beginning  of  a  war;  it  is  certainly  reason- 
f  able  not  to  bind  him  too  soon  to  an  acquired  character,  and 
to  allow  him  a  fair  time  to  disentangle  himself;  but  if  he 
continues  to  reside  during  a  good  part  of  the  war,  contri- 
buting by  payment  of  taxes  and  other  means,  to  the  strength 
of  that  country,  he  could  not  plead  his  special  purpose  with 
any  effect  against  the  rights  of  hostility.  If  he  could,  there 
"would  be  no  sufficient  guard  against  the  fraud  and  abuses 
of  masked,  pretended,  original,  and  sole  purposes  of  a  long 
continued  residence.-  There  is  a  time  which  will  estop 
such  a  plea  ;  no  rule  can  fix  the  time  a  priori,  but  such  a 
time  there  must  be.  In  proof  of  the  efficacy  of  mere  time, 
it  is  not  impertinent  to  remark,  that  the  same  quantity  of 
business,  which  would  not  fix  a  domicil  in  a  certain  space 
of  time,  would  nevertheless  have  that  effect,  if  distributed 
over  a  larger  space  of  time.  This  matter  is  to  be  taken  in 
a  compound  ratio  of  the  time  and  the  occupation,  with  a 
great  preponderance  on  the  article  of  time :  be  the  occu- 
pation what  it  may,  it  cannot  happen,  but  with  few  excep- 
tions, that  mere-  length  of  time  shall  not  constitute  a  do- 
inicil.(''') 

But  on  the  other  hand,  mere  length  of  time  cannot  of  it- 
self be  decisive,  where  the  purpose  is  clearly  proved  to 
have  been  temporary,  and  still  continues  so,  without  any 
enlargement  of  views.  Therefore  where  the  party  merely 
went  out  to  collect  the  debts  due  to  his  house  of  trade,  and 
there  was  no  part  of  the  evidence  which  pointed  to  a  dis- 
tinct trade  disconnected  with  those  debts,  and  the  whole 
transaction  was  in  time  of  peace,  the  court  thought  that  the 

(0  2  Robinson,  322.    The  Harmony. 


JMAIIITIME    CAPTUllES    AND    PRIZES.  lOo 

presumption    from   length    of  time  was    not    so  forcible. 
N^or  would  the  circumstance  that  the  shipment  was  made 
in  the  character  of  an  enemy's  subject,   but  before  know- 
ledge of  hostilities,  affect   him   unfavourably.     For  a  dis- 
tinction has  been  taken  in  the  authorities  between  a  time 
of  peace  and  of  war.     Much  greater  laxity  is  allowed  to 
mercantile  transactions  in   peace  than  in  war.      Disguises 
and  covers  are  allowable  in  the  former  which  would  not  be 
tolerated   in  the  latter.     The    court   did  not  know  that  a 
single  case  had  been  decided  in  which  the  assuming  a  na- 
tional character  in  time  of  peace  to  avoid  municipal  duties 
or  regulations,  or  to   avoid  the  effects  of  impending  war, 
had  been  held  to  bind  the  party  where  it  had  not  been  in 
fraud  of  the  belligerent   who  made   the    capture.     If  the 
party  had   gone  on  after  the  war  making  shipments  in  the 
enemy  character,  the    court  had  no  doubt  that  he   would 
have  been  affected  with  its   penal  consequences.     But  the 
question  was,  if  the  shipment  made  in  the  enemy  character, 
without  being  engaged  as  a  general  merchant,  and  without 
the    intention   of  evading  any   other  but  the  municipal  or 
belligerent  rights  of  the  enemy,  should  conclude  the  party 
as  to  his  domicil  ?  The  court  could  not  say  that,  where  the 
proof  is  otherwise  satisfactory,    this   circumstance   alone 
ought  to  draw  after  it  that  consequence.     It  thought  that 
great  indulgence  was   usually  granted   to  neutrals   and  to 
citizens,  as  to   transactions  in  time   of  peace  and  at  the 
commencement  of  a  war,  and  if  they  contravened  no  muni- 
cipal or  national  policy,  it  was  not  prepared  to  say  that  this 
indulgence    is    inconsistent    with    law.      Fide    Chap.    V. 

§  1.  CO 

5.  The  native  character  and  natural  or  original  domicil 
easily  reverts,  and  it  requires  fewer  circumstances  to  con- 
stitute domicil,  in  the  case  of  a  native  citizen  or  subject, 

('•)  Per  Stoht  J.  The  Ann  Greene.  Circuit  Court  of  the  U.S.  for 
the  Massachusetts  district,  October  T.  1812.  MS. 


10a  LAW    OF  CHAP.  IV. 

than  to  impress  tlie  national  character  on  one  who  is  ori- 
ginally of  another  country. (') 

Thus  by  the  French  edicts  of  the  23d  July,  1704,  21st 
October,  1/44,  and  26th  July,  1788,  it  is  provided  that 
the  passports  granted  by  neutral  or  allied  powers,  to  the 
subjects  of  states  at  war  with  France,  who  have  obtained 
letters  of  naturalization  from  or  transferred  their  domicil 
to  the  territories  of  such  powers,  shall  not  be  valid  in  case 
they  shall  return  to  the  dominions  of  the  states  at  war  with 
France  for  the  purpose  of  there  continuing  their  trade.  C') 

6.  Where  the  claimants  were  native  British  subjects, 
who  came  to  the  United  States  many  years  prior  to  the 
late  war,  and,  after  the  regular  period  of  residence,  were 
admitted  to  the  rights  of  naturalization. — Some  time  after 
this,  but  long  prior  to  the  declaration  of  war,  they  returned 
to  Great  Britain,  settled  themselves  there,  and  engaged  in 
the  trade  of  that  country,  where  they  were  found  carrying 
on  their  commercial  business  at  the  time  these  shipments 
\rere  made ;  and  at  the  time  of  the  capture,  one  of  the 
claimants  was  yet  in  the  enemy's  country,  but  had,  since 
he  heard  of  the  capture,  expressed  his  anxiety  to  return  to 
the  United  States,  but  had  been  prevented  from  so  doing 
by  various  causes  set  forth  in  his  affidavit.  Another  actu- 
ally returned  some  time  after  the  capture ;  and  a  third  was 
still  in  the  enemy's  country. 

Tliis  claim  was  resisted  upon  an  objection  to  the  national 
character  of  the  claimants. 

The  great  question  involved  in  this  case  Was,  whether 
the  property  of  claimants  who  were  settled  in  the  enemy's 
country,  and  engaged  in  the  commerce  of  that  countrj-, 
?;hipped  before  they  had  a  knowledge  of  the  war,  but  which 
was  captured,  after  the  declaration  of  war,  by  a  criiizer  of 
the  belligerent  state,  ought  to  be   condemned  as  lawful 

(')  5  Robinson,  Q8.  La  Virginie. 
C)  1  Code  den  Prises,  92. 139.  G03. 


MARITIME    CAPTURES    AND    PRIZE^^.  107 

prize.  It  was  contended  by  the  captors,  tliat  as  the  claim- 
ants had  gained  a  domicil  in  the  enemy's  country,  and  con- 
tinued to  enjoy  it  up  to  the  time  when  war  was  declared, 
and  when  the  capture  was  made,  they  must  be  considered 
as  enemies,  in  reference  to  this  property,  and  consequently, 
that  it  might  legally  be  seized  as  prize  of  war,  in  like  man- 
ner as  if  it  had  belonged  to  real  enemy  subjects.  But  if 
not  so,  it  was  then  insisted,  that  these  claimants  having, 
after  their  naturalization,  returned  to  the  country  of  their 
birth,  and  there  resettled  themselves,  they  became  redin- 
tegrated British  subjects,  and  ought  to  be  considered  by 
the  court  in  the  same  light  as  if  they  had  never  emigrated. 
On  the  other  side  it  was  argued,  that  citizens  of  the  belli- 
gerent state  settled  in  the  country  of  the  enemy,  as  these 
persons  were,  at  the  time  war  was  declared,  were  entitled 
to  a  reasonable  time  to  elect,  after  they  knew  of  the  war, 
to  remain  there,  or  to  return  home ;  and  that,  until  such 
election  was  bona  fide  made,  the  courts  of  this  country  were 
bound  to  consider  them  as  citizens  of  it,  and  their  proper- 
ty shipped  before  they  had  an  opportunity  to  make  this 
election,  as  being  protected  against  capture  by  its  cruizers. 

There  being  no  dispute  as  to  the  facts  upon  which  the 
domicil  of  these  claimants  was  asserted,  the  questions  of 
law  to  be  considered  were  two — First,  By  what  means,  and 
to  what  extent,  a  national  character  may  be  impressed  upou 
a  person,  different  from  that  w'nich  permanent  allegiance 
gives  him  ? — and.  Secondly,  What  are  the  legal  consequen- 
ces to  which  this  acquired  character  may  expose  him,  in 
the  event  of  a  war  taking  place  between  the  country  of  his 
residence  and  that  of  his  birth,  or  in  which  he  had  been 
naturaUzed  ? 

I.  The  writers  upon  the  law  of  nations  distinguish  be- 
tween a  temporary  residence  in  d  Joreign  countr\',  for  a 
special  purpose,  and  a  residence  accompanied  with  an  in- 
tention to  make  it  a  permanent  place  of  abode-  V?r^:' 
Supra.   ^3. 


JOS  LAW    OF  CHAP  IV. 

The  doctrine  of  the  prize  courts,  as  well  as  of  the 
courts  of  comrrson  law  in  England,  which,  it  was  hinted 
in  argument,  had  no  authority  of  universal  law  to  stand 
upon,  is  the  same  with  what  is  stated  by  Carotins  and  Vat- 
tel,  except  that  it  is  less  general,  and  coiifines  the  conse- 
quences resulting  from  this  acquired  character  to  the  pro- 
perty of  those  persons  engaged  in  the  corninercc  of  the  coun- 
try where  they  reside.  It  is  decided  by  those  courts,  that 
whilst  an  Englishman,  or  a  ncuiral,  resides  in  a  hostile 
country,  he  is  a  svibject  of  that  country,  and  is  to  be  con- 
sidered (even  by  his  own,  or  native  countr\^,  in  the  former 
case)  as  having  a  native  character  impressed  upon  him. 

In  deciding  whether  a  person  has  obtained  the  right  of 
an  acquired  domicil,  it  is  not  to  be  expected  that  much,  if 
any  assistance  should  be  derived  from  mere  elementary 
writers  on  the  law  of  nations.  They  can  onlv  lay  down 
the  general  principles  of  law,  and  it  becomes  the  duty  of 
courts  to  establish  rules  for  the  proper  application  of  those 
principles.  The  question,  Whetheir  the  person  to  be  af- 
fected by  the  right  of  domicil,  had  sufficiently  made  known 
his  intention  of  fixing  himself  permanently  in  the  foreign 
country,  must  depend  upon  all  the  circumstances  of  the 
case.  If  he  had  made  no  express  declaration  on  the  sub- 
ject, and  his  secret  intention  is  to  be  discovered,  his  acts 
must  be  attended  to,  as  affording  the  most  satisfactory 
evidence  of  his  intention.  On  this  ground  it  is,  that  the 
courts  of  England  have  decided,  that  a  person  who  re- 
moves to  a  foreign  country,  settles  himself  there,  and  en- 
gages in  the  trade  of  the  country,  furnishes  by  these  acts, 
such  evidence  of  an  intention  permanently  to  reside  there, 
as  to  stamp  him  with  the  national  character  of  the  state 
where  he  resides.  In  questions  on  this  subject,  the  chief 
point  to  be  considered,  is  the  animits  7nanendi ;  and  courts 
are  to  devise  such  reasonable  rules  of  evidence  as  may 
establish  the  fact  of  intention.  If  it  sufllciently  appears 
that  the  intention  of  removing  was  to  make  a  permanent 


MARITIME    CAPTURES    AND    PRIZES.  10.0 

settlement,  or  for  an  indefinite  time,  the  right  of  domicil  is 
acquired  by  residence  even  of  a  few  days.  This  is  one  of 
the  rules  of  the  British  prize  courts,  and  it  appears  to  be 
perfectly  reasonable.  Another  is,  that  a  neutral  or  subject, 
found  residing  in  a  foreign  country,  is  presumed  to  be 
there  aniino  manendi ;  and  if  a  state  of  war  should  bring 
his  national  character  into  question,  it  lies  upon  him  to  ex- 
plain the  circumstances  of  his  residence. (')  As  to  some 
other  rules  of  the  prize  courts  of  England,  piarticularly 
those  which  fix  a  national  character  upon  a  person,  on  the 
ground  of  constructive  residence,  or  the  peculiar  nature  of 
his  trade,  the  court  was  not  called  upon  to  give  an  opinion 
at  that  time  ;  because  in  this  case,  it  was  admitted  that  the 
claimants  had  acquired  a  right  of  domicil  in  Great  Britain 
at  the  time  of  the  breaking  out  of  the  war  between  that 
country  and  the  United  States. 

II.  The  next  question  is.  What  are  the  consequences  to 
which  this  acquired  domicil  may  legally  expose  the  person 
entitled  to  it,  in  the  event  of  a  war  taking  place  between 
the  government  under  which  he  resides,  and  that  to  which 
he  owes  a  permanent  allegiance  ?     A  neutral,  in  this  situ- 
ation, if  he  should  engage  in  open  hostilities  with  the  other 
belligerent,  would  be  considered  and  treated  as  an  enemy. 
A  citizen  of  the  other  belligerent  could  not  be  so  consider- 
etl,  because  he  could  not,  by  any  act  of  hostility,  render 
himself  strictly  speaking  an  enemy,  contrary  to  his  perma- 
nent allegiance.     But  although  he  cannot  be  considered  an 
enemy  in  the  strict  sense  of  the  word,  yet  he  is  deemed 
such,  with  reference  to  the  seizure  of  so  much  of  his  pro- 
perty concerned  in  the  trade  of  the  enemy,  as  is  connected 
with  his  residence.     It  is  found  adhering  to  the  enemy. 
He  is  himself  adhering  to  the  enemy    although  not  crimi- 
nally so,  unless  he  engages  in  acts  of  hostility  against  his 
native  country^,  or  (probably)  refuses,  when  required  by 

(')  1  Jiobinson,  86.  1»2.    The  Bcrncn. 
15 


110  3-AT\-    OF  CHAP.    IV. 

his  country,  to  return.  The  same  rule,  as  to  property  en- 
gaged in  the  commerce  of  the  enem_y,  applies  to  neutrals, 
and  lor  the  same  reason.  Tlie  converse  of  this  rule  in- 
evitably applies  to  the  subject  of  a  belligerent  domiciled  iii 
a  neutral  country  ;  he  is  deemed  q  neutral  by  both  belli- 
gerents, wich  reference  to  the  trade  which  he  carries  on 
ivith  ihe  adverse  belligerent,  and  with  all  the  rest  of  the 
world. 

But  this  national  character  which  a  man  acquires  by  re- 
sidence, may  be  thrown  off  at  pleasure,  by  a  return  to  his 
l^ative  country,  or  even  by  turning  his  back  on  the  country 
in  which  he  resided,  on  his  way  to  another.  To  use  the 
language  of  Sir  W.  Scott,  it  is  an  adventitious  character, 
gained  by  residence,  and  which  ceases,  by  non-residence  j 
it  no  longer  adheres  to  the  party  from  the  moment  he  puts 
himself  in  motion,  bona  jide^to  quit  the  country  sine  ammo 
a-evertendi.  2>  Robinso7i^  17.  12.  The  Indian  Chief.— The 
reasonableness  of  this  rule  can  hardly  be  disputed.  Hav- 
ing once  acquired  a  national  character  by  residence  in  a  fo- 
reign, country,  he  ought  to  be  bound,  by  all  the  consequen- 
ces of  it,  until  he  has  thrown  it  off,  either  by  an  actual  re- 
turn to  his  native  country,  or  to  that  where  he  v/as  natural- 
ized, or  by  commencing  his  removal,  bona  fide  ^  and  with- 
out an  intention  of  returning.  If  any  thing  short  of  actual 
removal  be. admitted  to  work  a  change  in  the  national  cha- 
racter acquired  by  residence,  it  seems  perfectly  reasonable 
that  the  evidence  of  a  bona  fide  intention  to  remove  should 
Lc  such  as  to  leave  no  doubt  of  its  sincerity.  Mere  decla- 
rations of  such  an  intention  ought  never  to  be  relied  upon, 
v.hcn  contradicted,  or  at  least  rendered  doubtful,  by  a  con- 
tinuance of  that  residence  which  impressed  the  character. 
They  may  have  been  made  to  deceive ;  or,  if  sincerely 
jnade,  they  may  never  be  executed.  Even  the  party  him- 
self ought  not  to  be  bound  by  them,  because  he  may  after- 
wards find  reason  to  change  his  determination,  and  ought 
to  be  permitted  to  do  so.     iBtU  when  he  accooipr^nics  these 


Maritime  captures  and  prizes.  Ill 

declarations  by  acts  which  speak  a  latiguage  not  to  be  mis- 
taken, and  can  hardly  fail  to  be  consummated  by  actual  re- 
tnoval,  the  strongest  evidence  is  afforded  which  the  nature 
of  such  a  case  caw  furnish.  And  is  it  not  improper  that 
the  courts  of  a  belligerent  nation  should  deny  to  any  per- 
son the  right  to  use  a  character  so  equivocal,  as  to  put  it 
in  his  power  to  claim  whichever  may  best  suit  his  purpose, 
when  it  is  called  in  question  ?  If  his  property  be  taken 
trading  with  the  enemy,  shall  he  be  called  on  to  shield  it 
from  confiscation,  by  alleging  that  he  had  intended  to  re- 
move from  the  country  of  the  enemy  to  his  own,  then  neu- 
tral, and  therefore,  that,  as  a  neutraU  the  trade  was  lawful  ? 
If  war  exist  between  the  country  ofliis  residence  and  his 
native  country,  and  his  property  be  seized  by  the  former 
or  by  the  latter,  shall  he  be  heard  to  say  in  the  former  case, 
that  he  was  a  domiciled  subject  of  the  country  of  the  cap- 
tor, and  in  the  latter  that  he  was  a  native  subject  of  the 
country  of  that  captor  also,  because  he  had  declared  an  inten- 
tion to  resume  his  native  character ;  and  thus  to  parry  the 
belligerent  rights  of  both  ?  It  is  to  guard  against  such  incon- 
sistencies, and  against  the  frauds  which  such  pretensions, 
if  tolerated,  would  sanction,  that  the  rule  above  mentioned 
has  been  adopted.  Upon  what  sound  princip  e  can  a  dis- 
tinction be  framed  between  the  case  of  a  neutral,  and  the 
subject  of  one  belligerent  domiciled  in  the  country  of  the 
other  at  the  breaking  out  of  the  war  ?  The  property  of 
each,  found  engaged  in  the  commerce  of  their  adopted 
country,  belonged  to  them,  before  the  war,  in  their  charac- 
ter of  subjects  of  that  country,  so  long  as  they  continued  to 
retain  their  domicil ;  and  when  a  state  of  war  takes  place 
between  that  countiy  and  any  other,  by  which  the  two  na- 
tions and  all  their  subjects  become  enemies  to  e^ch  other, 
it  follows,  that  this  property,  which  was  once  the  property 
of  a  friend,  belongs  now,  in  reference  to  that  property,  to 
an  enemy. 


112  LAW    OF  CHAP.  lY. 

This  cjoctrine  of  the  common  law  and  prize  courts  of 
England  is  founded  like  that  mentioned  under  the  first 
head,  upon  international  law,  and  it  is  believed  to  be  strong- 
ly supported  by  reason  and  justice.  And  why,  it  may  be 
confidently  asked,  should  not  the  prop  erty  of  enemy*s 
subjects  be  exposed  to  the  law  of  reprisals  and  of  war,  so 
long  as  the  owner  retains  his  acquired  domicile  or,  in  the 
words  of  Grotius,  continues  a  permanent  residence  in  the 
country  of  the  enemy  ?  They  were  before,  and  continue 
after  the  war,  bound,  by  such  residence,  to  the  society  of 
which  they  are  members,  subject  to  the  laws  of  the  state, 
and  owing  a  qualified  allegiance  thereto  ; — they  are  obliged 
to  defend  it,  (with  an  exception  in  favour  of  such  subject, 
in  relation  to  his  native  country)  in  return  for  the  protec- 
tion it  affords  them,  and  the  privileges  which  the  laws  be- 
stow upon  them  as  subjects.  The  property  of  such  per- 
sons, equally  with  that  of  the  native  subjects  in  their  totali- 
ty, is  to  be  considered  as  the  goods  of  the  nation,  in  regard 
to  other  states.  It  belongs,  in  some  sort,  to  the  state,  from 
the  right  which,  the  state  has  over  the  goods  of  its  citizens, 
which  make  a  part  of  the  sum  total  of  its  riches,  and  aug- 
ment its  power.('")  In  reprisals,  continues  the  same  au- 
thor, we  seize  on  the  property  of  the  subject,  just  as  we 
"would  that  of  the  sovereign ;  every  thing  that  belongs  to 
the  nation  is  subject  to  reprisals,  wherever  it  can  be  seized 
with  the  exception  of  {^)  a  deposit  entrusted  to  the  public 
faith.  Now  if  a  permanent  residence  constitutes  the  per- 
son a  subject  of  the  country  where  he  is  settled,  so  long 
as  he  continues  to  reside  there,  and  subjects  his  property  to 
the  law  of  reprisals,  as  a  part  of  the  property  of  the  nation, 
jt  would  seem  difficult  to  maintain  that  the  same  conse- 
quences would  not  follow  in  the  case  of  an  open  and  pub- 

("')  Vallel,  L.  1.  c.  14.  $  182- 
(")  L.  2.  c.  18.  §  344- 


MARITIME    CAPTURES    AND    PRIZES.  1  l.'> 

ilc  war,  whether  lyetwcen  the  adopted  and  n.itive  countries 
of  persons  so  domiciled,  or  between  the    former  and  any 
other  nation.     If,  then,  nothing  but  an  actual  removal,  or 
a  honafde   beginning   to   renvove,   can  change  a  national 
character,  acquired  by   domicil,  and  if,  at  the  time  of  the 
inception  of  the  voyage,  as  well  as   at  the  time  of  capture, 
the  property  belonged  to  such  domiciled  person  in  his  cha- 
racter of  a  subject,  what  is  there  that  does,  or  ought  to  ex- 
cept it  from  capture  by  the  privateers  of  his  native  country, 
if,  at  the  time  of  capture,   he  continues   to  reside   in  the 
country  of  the  adverse  belligerent  ?  It  was  contended  that 
a  native  or  naturalized  subject  of  one  country  who  is  sur- 
prised in  the  country  where  he  was  domiciled,  by  a  decla- 
ration of  war,  ought  to  have  time  to  make  his  election  to 
continue  there,  or   to  remove  to  the  country  to  which  he 
owes  a  permanent  allegiance  ;  and  that,  until  such  election 
be  made,  his  property  ought  to  be  protected  from  capture 
by  the  cruizers  of  the  latter.     This  doctrine  Is  believed  to 
be  as  unfounded  in  reason  and  justice,  as  it  clearly  is  in 
law.     In  the  first  place,  it  is  founded  upon  a  presumption, 
that  the  person  will  certainly  remove,  before  it  can  possibly 
be  known  whether  h^  may  elect  to  do  so  or  not.     It  is  said 
that  the  presumption  ought  to  be   made,  because  upon  re- 
ceiving-information of  the  war,  it  will  be  his  duty  to  return 
home.     This  position  is  denied.     It  is  his  duty  to  comnii*: 
no  acts  of  hostility  against  his  native  country,  and  to  rcturu 
to  her  assistance  when  required  to  do  so  ;  nor  will  any  jus* 
nation,  regarding  the  mild  principles  of  the  law  ofnations. 
require  him  to  take  arms  against  his  native  country,  or  re- 
fuse permission  to  him  to  withdrav/  whenfever  he  wialu'^ 
to  do  so,  unless  under  peculiar   circumstances,  which,  bj* 
such  removal  at  a  critical  period,  might  endangf^r  the  pub- 
lic safety.     The  conventional  law  of  nations  is  in  confor- 
mity with  these  principles.     It  Is  not  uncommon  to  stipu- 
late In  treaties,  that  the  subjects  of  each  party  shall  be  al- 
lowed to  rea^ove  with  their  propertv,  or  to  remain   unuu^- 


114  Law  op  chap.  iv. 

iested.  Such  a  stipulation  docs  not  coerce  those  subjects 
either  to  remove  or  to  remain.  They  are  left  frc-e  to 
choose  for  themselves  ;  and  when  they  have  made  thtir 
election,  they  claiiai  the  right  of  enjoying  it  under  the  trea- 
ty— But  until  the  election  is  made,  their  former  character 
continue')  unchanged.  Until  this  election  is  made,  if  his 
property  fovmd  upon  the.  high  seas,  engaged  in  the  com- 
merce of  his  adopted  covmtry,"  should  be  permitted  by  the 
cruizers  of  the  other  belligerent,  to  pass  free  under  a  notion 
that  he  may  elect  to  remove,  upon  notice  of  the  war,  and 
should  arrive  safe,  what  is  to  be  done  in  case  the  owner  of 
it  should  afterwards  elect  to  remain  where. he  is  ?  For,  if 
captured  and  brought  immediately  to  adjudication,  it  must, 
upon  this  doctrine,  be  acquitted  until  the  election  to  remain 
is  made  and  known.  In  short,  the  point  contended  for 
would  apply  the  doctrine  of  relation  to  cases,  where  the 
party  claiming  the  benefit  of  i^t,  may  gain  all,  and  can  lose 
nothing.  If  he,  after  the  capture,  should  find  it  his  inter- 
est to  remain  where  he  is  domiciled,  his  property  embark- 
ed before  his  election  was  made,  is  safe.  And  if  he  finds 
it  best  to  return,  it  is  safe  of  course.  It  is  safe  whether  he 
goes  or  stays.  This  doctrine  producing  such  contradictory 
consequences,  is  not  only  unsupported  by  any  authority 
but  it  would  violate  principles  long  and  well  established  in 
the  prize  courts  of  England,  and  which  ought  not,  with- 
out strong  reasons  which  may  render  them  inapplicable  to 
this  countrv,  to  be  disregarded  by  the  court.  The  rule 
there,  is,  that  the  character  of  property,  during  war,  cannot 
be  changed  in  transitu^  by  any  act  of  the  party  subsequent 
to  the  capturcr.  The  rule  indeed  goes  further ;  as  to  the 
correctness  of  which  in  its  greatest  extension,  no  opinion 
needed  then  be  given  ;  but  it  might  safely  be  affirmed,  that 
the  change  cannot,  and  ought  not  to  be  effected  by  an  elec- 
tion of  the  owner  and  shipper  of  it,  made  subsequent  to 
the  capture,  ^md  more  especially,  after  a  knowledge  of  the 
c'.ipture   is   obtained   by  the  owner.     Observe  the  conse- 


MAniTIME    CAPTURES    ATSD    PRIZE.-.  llo- 

quences  which  would  result  from  it.  The  capture  is  made 
ivnd  known.  The  owner  is  allowed  to  deliberate  whether 
it  is  his  interest  to  remain  a  subject  of  his  adopted,  or  of 
his  native  country.  If  the  capture  be  made  by  the  former, 
then  he  elects  to  be  a  subject  of  that  country; — if  by  the 
latter,  then  a  subject  of  that.  Can  such  a  priyilegtd  si- 
tuation be  tdlerated  by  either  belligerent  ?  Can  any  system 
of  law  be  correct,  which  places  an  individual,  who  adheres 
to  one  belligerent,  and,  to  the  period  of  his  election  to  re- 
move, contributes  to  increase  her  wealth,  in  so  anomalous 
a  situation  as  to  be  clothed  with  the  privileges  of  a 
neutral,  as  to  both  belligerents  ?  This  notion  about  3. 
temporary  state  of  neutrality  impressed  upon  a  sub- 
ject of  one  of  the  belligerents,  and  the  consequent  ex- 
emption of  his  property  from  capture  by  either,  until  he 
has  had  notice  of  the  war  and  made  his  election,  is  altogeth- 
er a  novel  theory,  and  seemed,  from  the  course  of  the  argu- 
ment, to  owe  its  origin  to  a  supposed  hardship  to  which  the 
contrary  doctrine  exposes  him.  But  if  the  reasoning  em- 
ployed on  the  subject  be  correct,  no  such  hardship  can  exist. 
For  if,  before  the  election  is  made,  his  property  on  the 
ocean  is  liable  to'  capture  by  the  cruizers  of  his  native 
and  deserted  country,  it  is  not  only  free  from  capture  by 
those  of  his  adopted  country,  but  is  under  its  protection. 
The  privilege  rs  supposed  to  be  equal  to  the  disadvantage, 
and  is  therefore  just.  The  double  privilege  claimed  seems 
too  unreasonable  to  be  granted. 

It  wiH  be  observed  that  in  the  foregoing  opinion  respect- 
ing the  nature  and  consequences  of  domicil,  very  few  cases 
have  been  referred  to.  It  was  thought  best  not  to  inter- 
rupt the  chain  of  argument,  by  stopping  to  examine  cases ; 
but  faithfully  to  present  the  essential  principles  to  be  ex- 
tracted from  those  which  were  cited  at  the  bar,  or  which 
have  otherwise  come  under  the  view  of  the  court,  and 
which  applied  to  the  subject,  that  the  national  character 
of  the  owner  ^t  the  time  of  capture  must  decide  his  right 


lis  LAW    OF  CHAP.  IV. 

to  claim,  and  that  a  subject  is  concluded  by  it,  even  in  the 
court  of  his  native  country,  without  time  being  allowed 
him  to  elect  to  remove. (") 

The  case   first  cited  is  somewhat  stronger  than  the  pre- 
sent in  that,  the  state  of  hostility,  alleged  to  have  existed 
at  the  time  of  capture,  was  made  out  by  considering  the 
subsequent  declaration  of  war  as  relating^  back  to  the  time 
of  seizure  under  the  embargo,  by  which  reference  it  was 
decided  to  be  a  hostile  embargo,  and  of  course  tantamount 
to  an  actual  state  of  war.     But  this  case  also  proves,  not 
only  that  the  hostile  character  of  the  property  at  the  time 
of  capture  establishes  the  legality  of  it,  but  that  no  future 
circumstance  changing  the  hostile  character  of  the  claimant 
to  that  of  a  , friend  or  a  subject,  can  entitle  him  to  restitu- 
tion.    Whether  the  claimant  in  this  case  was  a  neutral  or  a 
British  subject,  does   not  appear.     But  if  the  former,  it 
would  not,  it  was  presumed,  be  contended  ths^t  he  is,  upon 
the  principles  of  national  law,  less  to  be  favoured  in  the 
courts  of  the  belligerent,  than  a  subject  of  that  nation  do-' 
miciled  in  the  country  of  the  adverse   belligerent.     Mr* 
IVIiiteliUVs  case,  however,  referred  to  frequently  in  Robin- 
son's Reports,  comes  fully  up  to  the  present,  because  he 
was  a  British  subject,  who  had  settled  but  a  few  days  in 
the   hostile  country,  but  before  he   knew  or  could  have 
known  of  the  declaration  of  war ;  yet,  as  he  went  there 
with  an  intention  to  settle,  this,  connected  with  his  resi- 
dence,   short  as  it  was,  fixed  his  national  character,  and 
identified  him  with  the  enemy  of  the  country  he  had  so  re- 
cently quitted.     The  want  of  notice,  and  of  an  opportunity 
to  extricate  himself  from  a  situation  to  which  he  had  so 
recently  and  so  innocently  exposed  himself,  could  not  pre- 
vail to  protect  his  property  against  the  belligei-ent  rights  of 
his  owii  country,  and  to  save  it  from  confiscation.(i') 

(W)  5  Jiobinson,  230.  Bocdes  Ltist,  1  Robinton,  115.  llersteldcr,  X07. 
Tlfankcbaar  Afficaan. 

C)  Ter  Waahixotow,  J.  The  "Vcnus.  Supreme  Court  of  the  V.  ?. 
TLbruary  T.  1814.  M.  S. 


MARITIME    CAPTURES    AND    PRIZES.  117 

The  opinion  of  the  court  in  the  above  case  was  dissented 
from  by  two  of  the  judges,(<i)  the  first  of  whom  stated,  that 
he  entirely  concurred  in  so  much  of  the  opinion  delivered 
in  this  case,  as  attaches  a  hostile  character  to  the  property 
of  a  citizen  continuing,  after  the  declaration  of  war,  to  re- 
side and  trade  in  the  country  of  the  enemy ;  and  subscribed 
implicitly  to  the  reasoning  urged  in  its  support.  But  from 
so  much  of  that  opinion  as  subjects  to  confiscation  the  pro- 
perty of  a  citizen  shipped  before  a  knowledge  of  the  war, 
and  which  disallowed  the  defence  founded  on  an  intention  to 
change  his  domicil  and  to  return  to  the  United  States,  ma- 
nifested in  a  sufficient  manner,  and  within  a  reasonable  time 
after  knowledge  of  the  war,  although  it  be  subsequent  to 
the  capture,  he  felt  himself  compelled  to  dissent. 

The  question  was  undoubtedly  complicated  and  intri- 
cate. It  was  difficult  to  draw  a  line  of  discrimination, 
which  should  be,  at  the  same  time,  precise  and  equitable. 
But  the  diificulty  did  not  appear  to  him  to  be  sufficient  to 
deter  courts  from  making  the  attempt. 

A  merchant  residing  abroad  for  commercial  purposes, 
may  certainly  intend  to  continue  in  the  foreign  country,  so 
long  as  peace  shall  exist,  provided  his  commercial  objects 
shall  detain  him  so  long,  but  to  leave  it  the  instant  war  shall 
break  out  betvrcen  that  country  and  his  own.  This  inten- 
tion it  is  not  r.ecessaiy  to  manifest  during  peace,  and  when 
war  shall  commence,  the  belligerent  cruizer  may  find  his 
property  on  the  ocean,  and  may  capture  it  before  he  knows 
that  war  exists.  The  question,  whether  this  be  enemy's 
property  or  not,  depends,  not  exclusively  on  the  residence 
of  the  owner  at  the  time,  but  on  his  residence  taken  in  con- 
nexion with  his  national  character  as  a  citizen,  and  with  his 
intention  to  continue  or  discontinue  his  commercial  domi- 
cil in  the  event  of  war. 

The  evidence  of  this  intention,  will  rarely,  if  ever,  be 
given  during  peace.  It  must,  therefore,  be  furnished,  if 
(".;  MiusHAii,  C.  J.  and  Livisesxoj?,  J. 

IQ 


11^  LAW    OF  CHAP.    IT. 

at  all,  after  the  war  shall  be  known  to  him  ;  and  that  know- 
ledge may  be  preceded  by  the  capture  of  his  goods.  It 
appeared  then,  to  be  a  case  in  which,  as  in  many  others, 
justice  requires  that  subsequent  testimonies  shall  be  re- 
ceived to  prove  a  pre-existing  fact.  Measures  taken  for 
removal  immediately  after  a  war  may  prove  a  previous  in- 
tention to  remove  in  the  event  of  war,  and  may  prove  that 
the  captured  property,  although,  prima  facie^  belonging  to 
?.n  enemy,  does,  in  fact,  belong  to  a  friend.  In  such  case, 
the  citizen  haska  right,  in  the  nature  of  thejW  post  timini'iy 
to  claim  restitution. 

As  this  question  v/as  not  only  decisive  of  many  claims 
then  depending  before  the  court,  but  also  of  vast  importance 
to  ouY  merchants  generally,  he  might  be  excused  for  stat: 
ing  at  Gome  length,  the  reason  on  v;hich  his  opinion  was 
founded. 

The  whole  system  of  decisions  applicable  to  this  sub* 
ject,  rests  on  the  law  of  nations  as  its  base.  It  is,  thert;- 
fore,  of  some  importance  to  enquire  how  far  the  writers  on 
that  law  consider  the  subjects  of  one  power  residing  with- 
in the  territory  of  another,  as  retaining  their  original  cha- 
2actcrs,  or  p:\vtaking  of  the  character  of  the  nation  in  which 
they  reside. 

J'attelj  who,  tliough  not  very  full  to  this  point,  is  more 
explicit  and  more  siitisfactoiy  on  it  than  any  other  which 
had  fallen  into  his  hands,  says,  "  The  citizens  are  the 
itiembers  of  the  civil  society  ;  bound  to  this  society  by  cer- 
tain duties  and  subject  to  its  authority;  they  equally  par- 
ticipate in  its  advantages.  'I'he  natives,  tiyq  those  born  in  the 
country,  of  parents  who  are  citizens.  Society  not  being 
able  to  subsist  and  perpetuate  itself  but  by  the  children  of 
the  citizens,  those  children  natui^ally  follow  the  condition  of 
their  father,  and  succeed  to  all  his  rights." 

*'  The  inhabitants,  as  distinguished  from  citizens,  are 
changers  who  are  permilicd  to  settle  and  stay  in  the 
country.    Bound,  by  their  residence  to  the  •society,  ihey  are 


MARITIME    CAPTURES    AND    PRIZES.  US 

sabject  to  the  laws  of  the  state,  while  they  reside  there, 
and  they  are  obliged  to  defend  it,  because  it  grants  them, 
protection,  though  they  do  not  participate  in  all  the  rights  of 
citizens.  They  enjoy  only  the  advantages  v/hich  the  laws, 
or  custom  gives  them.  The  perpetual  inhabitants  are  those 
who  have  received  the  right  of  perpetual  residence.  These 
are  a  kind  of  citizens  of  an  inferior  order,  and  are  united 
and  subject  to  th%' society,  without  participating  in  all  its 
advantages." 

A  domicil,  in  the  sense  in  which  this  term  is  used  by 
Vattely  requires  not  only  actual  residence  in  a  foreign  coun- 
try, but  '■'■  an  intention  of  always  staying  there,"  actual 
residence  without  this  intention^  amounts  to  no  more  than 
"  simple  habitation." 

Although  this  intention  may  be  implied  without  being  ex- 
pressed, it  ought  not  to  be  implied,  to  the  injury  of  the 
individuals  from  acts  entirely  equivocal.  If  the  stranger 
nas  not  the  power  of  making  his  residence  perpetual  ;  if 
circumstances,  after  his  arrival  in  a  country,  so  change,  as 
to  make  his  continuance  there  disadvantageous  to  himself, 
and  his  power  to  continue  doubtful,  "  an  intention  always 
to  stay  there"  ought  not,  to  be  fixed  upon  him,  in  conse- 
quence of  an  unexplained  residence  previous  to  that  change 
of  circumstances.  Mere  residence,  under  particular  cir- 
cumstances, would  seem,  at  most,  to  prove  only  an  intention 
to  remain  so  long  as  those  circumstances  continue  the  same, 
or  equally  advantageous.  This  does  not  give  a  domicil. 
The  intention  which  gives  a  domicil  is  an  unconditional  in- 
tention "  to  stay  always." 

The  right  of  the  citizens  or  subjects  of  one  country  to 
remain  in  another,  depends  on  the  will  of  the  sovereign 
of  that  other  ;  and  if  that  will  be  not  expressed  otherwise 
than  by  general  hospitality  which  receives  and  affords  secu- 
rity to  strangers,  it  is  supposed  to  terminate  with  the  rela- 
tions of  peace  between  the  two  countries.  When  war 
brealis  out,  the  subjects  of  one  belligerent  in  the  country  of 


120  l.A^r  ov  chap.  iv. 

the  other,  are  considered  as  enemies,  and  have  no  right  to 
remain  there. 

Vattel  says,  *'  Enemies  continue  such  wherever  they 
happen  to  be.  The  place  of  abode  is  of  no  account  here. 
It  is  the  political  ties  which  determine  the  quality,  while  a 
man  remains  a  citizen  of  his  own  country,  he  remains  the 
enemy  of  all  those  with  whom  a  nation  is  at  war." 

It  would  seem  to  require  very  strong  evidence  of  an  in- 
tention to  become  the  permanent  inhabitants  of  a  foreign 
country,  to  justify  a  court  in  presuming  such  intention  to 
continue,  when  that  residence  must  expose  the  person  to  the 
inconvenience  of  being  considered  and  treated  as  an  enemy. 
The  intention  to  be  inferred  solely  from  the  factof  residence 
during  peace,  for  commerci'l  purposes  is  necessarily  condi- 
tional, and  dependent  on  the  continuance  of  the  relations 
of  peace  between  the  two  countries. 

So  far  is  the  law  of  nations  from  considering  residence  in 
a  foreign  country  in  time  of  peace,  as  evidence  of  an  inten- 
tion "  always  to  stay  there,"  even  in  time  of  war,  that  the 
very  contrary  is  expressed.  Vattel  says,  "  The  sovereign 
declaring  war  can  neither  detain  those  subjects  of  the  ene- 
my who  are  within  his  dominions  at  the  time  of  the  declar- 
ation, nor  their  eiTects.  They  came  into  his  territory  on 
the  public  faith.  By  permitting  tht- m  to  enter  his  territory 
and  to  continue  there,  he  tacitly  promised  them  libertv  and 
security  for  their  return.  He  is  therefore  to  allow  them  a 
reasonable  time  for  withdrawing  with  their  effects  ;  and  if 
they  stay  beyond  the  term  prescribed,  he  has  a  right  to 
treat  them  as  enemies,  thotighas  enemies  disarmed." 

The  stranger  merely  residing  in  a  country  during  peace, 
however  long  his  stay,  and  v/hntever  his  employments, 
provided  it  be  such  as  strangers  may  engage  in,  cannot,  on 
the  principles  of  international  law,  be  considered  as  incorpo- 
rated into  tlint  society,  so  as  immediately  on  a  declaration 
of  war,  to  become  the  enemy  of  his  own.  "  Ills  property," 
says   V^aticl^  "  is  still  a  part,  of  the  totality  of  the  weahh  of 


aiAKITlME    qAPTUKES    AND    PRIZES.  121 

his  nation."  "  The  citizen  or  subject  of  a  state,  who  absents 
himself  for  a  time,  without  any  intention  to  abandon  the  so- 
ciety of  which  he  is  a  member,  does  not  lose  his  privilege 
by  his  absence ;  he  preserves  his  rights,  and  remains  bound 
by  the  same  obligations.  Being  received  in  a  foreign  coun- 
try, in  virtue  of  the  natural  society,  the  communication, 
and  commerce,  which  nations  are  obliged  to  cultivate  with 
each  other,  he  ought  to  be  considered  there  as  a  member 
of  his  ov/n  nation  and  treated  as  such." 

The  subject  of  one  power  inhabiting  the  country  of  anoth- 
er ought  not  to  be  considered  as  a  member  of  the  nation 
in  which  he  resides,  even  by  foreigners  ;  nor  ought  he,  on 
the  first  commencement  of  hostilities,  to  be  treated  as  an 
enemy  by  the  enemies  of  that  nation. 

Burlamaqiu  says,  *'  as  to  strangers,  those  who  settle  in  the 
enemies  country  after  a  war  is  begun,  of  which  they  had 
previous  notice,  may  justly  be  looked  upon  as  enemies  and 
treated  as  such.  But  in  regard  to  such  as  went  thither  be- 
fore the  war,  justice  and  humanity  require  that  we  should 
give  them  a  reasonable  time  to  retire  ;  and  if  they  neglect 
fhat  opportunity,  they  are  accounted  enemies." 

If  this  rule  be  obligatoiy  on  foreign  nations,  much  more, 
eught  it,  to  bind  that,  of  which  the  individual  is  a  member. 

He  thought  he  could  not  be  mistaken  when  he  said  that, 
in  all  the  views  taken  of  this  subject  by  the  most  approved 
writers  on  the  law  of  nations,  the  citizens  of  one  country  re- 
siding in  another,  is  not  considered  as  incorporated  in  that 
other,  but  is  still  considered  as  belonging  to  that  society  of 
which  he  was  originally  a  member :  And  if  war  break  out 
between  the  two  nations,  he  is  to  be  permitted,  and  is  ex- 
pected, to  return  to  his  own.  Pie  did  not  perceive  in  those 
v/riters  any  exception  with  regard  to  merchants. 

It  must,  however,  be  acknowledged,  that  the  great  ex- 
tention  of  commerce  has  had  considerable  influence  on  na- 
tional laws.  Rules  have  been  adopted,  perhaps  by  general 
consent;  principles  hc^ve  been  engrafted  on  the  originals  tock 


132  LAW    or        .  «HAP  IT. 

of  public  law,  by  which  merchants,  while  belonging  politi- 
cally to  one  society,  are  considered  commercially  as  the 
members  of  another.  For  commercial  purposes,  the  mer- 
chant is  considered  as  a  member  of  that  society  in  which 
he  has  his  domicil ;  and  less  conclusive  evidence  than 
would  seem  to  be  required  in  general  cases,  by  the  law  of 
nations,  has  been  allowed  to  fix  the  domicil  for  commercial 
purposes.  But  he  could  not  admit  that  the  original  mean- 
ing of  the  term  is  to  be  entirely  disregarded,  or  the  true 
nature  of  this  domicil  to  be  overlooked.  The  effects  of 
the  rule  ought  to  be  regulated  by  the  motives  which  are 
presumed  to  have  induced  its  establishment,  and  by  the 
convenience  it  was  intended  to  promote. 

The  policy  of  commercial  nations  receives  foreign  mer- 
chants into  their  bosoms ;  and  permits  their  own  citisens 
to  reside  abroad  for  the  purposes  of  trade,  without  injury 
to  their  rights  or  character  as  citizens.  This  free  inter- 
communication must  certainly  be  believedi  by  the  nations 
who  allow  it,  to  be  promotive  of  their  interests.  Nor  is  this 
opinion  ill  founded.  Nothing  can  be  more  obvious  than  that 
the  affairs  of  a  commercial  company  will  be  transacted  to 
most  advantage  by  being  conducted,  as  it  respects  both 
purchase  and  sale,  under  the  eye  of  a  person  interested  in 
the  result.  The  nation  which  takes  an  interest  in  the  pro- 
sperit)'"  of  its  commerce,  can  feel  no  inclination  to  restrain 
its  citizens  from  resiclence  abroad,  for  the  jpurposes  of  com- 
merce ;  nor  will  it  hastily  construe  such  residence  into  a 
change  of  national  character,  to  the  injury  of  the  individual. 
It  is  not  the  policy  of  such  a  nation,  nor  can  it  be  its  wish, 
to  restrain  its  citizens  from  pursuing  abroad,  a  business, 
which  tends  to  enrich  itself.  It  ought  not,  therefore,  to 
consider  them  as  enemies  in  consequence  of  their  having 
engaged  in  such  pursuit  in  the  country  of  a  friend,  who  be- 
fore their  removal,  becomes  an  enemy. 

If,  indeed,  it  be  the  real  intention  of  the  citizen  perma- 
nently to  change  his  rational  character;  if  it  be  his  choice 


MARTTTMK   rXFTURES    AND    PRIZES.  12B 

to  remain  in  the  country  of  the  enemy  during  war,  there 
can  be  no  harshness,  no  injustice,  in  treating  him  as  an  en- 
emy. But  if,  while  prosecuting  hia  busaiess  in  a  foreign 
country,  he  contemplates  a  return  to  his  own ;  if,  in  the 
prosecution  of  that  business,  he  is  promoting  rather  than 
counteracting  the  interests  and  policy  of  the  country  of 
whicli  he  is  a  member,  it  would  seem  to  be  pressing  the 
principles  too  far,  and  to  be  drawing  conclusions  which  the 
premises  will  not  warrant,  to  infer  conclusively,  an  inten- 
tion to  continue  in  a  country  which  has  become  hostile, 
from  a  residence  and  trading  in  that  country  while  it  was 
friendly;  and  to  punish  him  by  the  confiscation  of  his 
goods^  as  if  he  was  fully  rnnvictcd  of  that  intention. 

It  was  admitted  to  be  a  general  rule,  that,  while  the 
state  of  things  remains  unaltered ;  while  the  motives  which 
carried  the  citizen  abroad  continue  ;  while  he  still  prose- 
cutes a  business  of  uncertain  duration,  his  capacity  to  pro- 
secute v.'hich,  is  not  impaired,  his  mercantile  character  is 
confounded  with  that  of  the  country  in  which  he  resides, 
and  his  trade  is  considered  as  the  trade  of  that  country. 

It  will  require  but  a  slight  examination  of  the  subject,  to 
perceive  the  reason  of  this  rule  ;  and  that,  to  a  certain  ex- 
tent, it  is  convenient  without  being  unjust. 

In  times  of  universal  peace,  the  question  of  national  cha- 
racter can  arise  only  when  some  privilege  or  some  disabili- 
ty is  attached  to  it,  or  in  cases  of  insurance.  A  particular 
trade  may  be  allowed  or  be  prohibited  to  the  merchants  of 
a  particular  nation,  or  property  may  be  warranted  to  be  of 
a  particular  nation.  If,  in  such  cases,  the  residence  of  the 
individual  be  received  as  evidence  of  his  national  mercan- 
tile^ character,  the  subjects  of  inquiry  are  simplified ;  the 
questions  are  reduced  to  a  plain  one  ;  and  the  various  com- 
plex enquiries,  which  might  otherwise  arise,  are  avoided. 
There  is  therefore  much  convenience  in  adopting  this  prin- 
ciple in  such  a  state  of  things  ;  and  it  is  not  perceived  that; 
a^y  injustice  can  grow  out  of  it ;  since  the  individual  to 


124f  LAW  OF  CirAP.  IV. 

whom  the  rule  is  applied,  is  not  surprized  by  any  new  or 
unlooked  for  event. 

So  if  war  exists  between  two  nations,  each  belligerent 
having  a, right  to  capture  the  property  of  the  other  found 
on  the  ocean,  each  being  intent  on  destroying  the  commerce 
of  the  other,  and  on  depriving  it  of  every  cover  under  which 
it  may  seek  to  shelter  itself,  will  certainly  not  allow  the  ad- 
vantages of  neutrality  to  a  merchant  residing  in  the  country 
of  his  enemy.  Were  this  permitted,  the  whole  trade  of  the 
enemy  could  assume,  and  would  assume  a  neutral  garb. 
.  There  is  in  general  no  reason  for  supposing  that  a  mer- 
chant residing  in  a  foreign  country,,  and  carrying  on  trade, 
means  to  v/ithdrav/  from  it,  on  its  engaging  in  war  with 
any  other  country  to  which  he  is  bound  by  no  obligation. 
By  continuing  during  war  the  domicil  acquired  in  peace, 
he  violates  no  duty,  offends  against  no  generally  acknow- 
ledged principle,  and  retains  ail  his  rights  of  residence  and 
commerce.  The  v/ar  then  furnishes  no  motive  for  pre- 
suming thn':  he  15  about  to  change  his  situation,  and-  to  re- 
sume his  original  national  character. 

Thesf?*  reasons  r.ppear  to  require  the  rule  as  a  general 
one,  and  to  justify  its  r.ppiication  to  general  cases,  but,  they 
do  not  justify  its  application  to  the  qase  of  a  merchant 
whom  war  linds  engaged  in  trade  in  a  country"  which  be- 
comes the  enemy  of  his  ownj  this  country  ought  not  to  bind 
him  by  his  residence  during. peace,  nor  to  consider  him  as 
precluded  by  it  from  showing  an  intention  that  it  should 
terminate  with  the  relations  of  peace. 

When  it  is  considered  that  his  right  to  remain  and  pro- 
siecutc  that  trade  in  which  he  had  been  engaged  during 
peaqe  is  forfeited;  that,  his  duly  and  most  probably  his 
inclinations,  call  him  home  ;  that  he  has  become  the  enemy 
of  the  country  in  wliich  he  rcildcs ;  that  his  continuance  in 
it  exposes  hini  to  many  and  serious  inconveniences  ;  that 
his  person  and  property  ave  in  danger  ;  it  is  not  going  too 
far  to  £:;\-,  t':'   t'.'s  clinnr-'.-  in  jiis  r/itucition  may  be  consi* 


MARITIME   CAPTURES    AND    PRIZES.  125 

dereJ  as  changing  his  intention  on  the  subject  of  resi- 
dence, and  a,s  affording  a  presumption  of  intending  to  re- 
turn. 

Let  it  be  remembered  that,  according  to  the  law  of  na- 
tions, domicil  depends   on  the  intention  to  reside  perma- 
nently in  the  country  to  which  the  individual  has  removed; 
and  that  a  change  of  this"  intention  is,  at  any  time,  allow- 
able.    If  upon  "grouiids  uf  general  policy  and  general  con- 
venience, while   the   circumstances  under  which  the  resi- 
dence  commenced   continue  the   same  residence  and  em- 
ployment; if  permanent  trade  be  considered  as  evidence  of 
an   intention   to  continue  permanently  in  the  couutrf'',  and 
as  giving  a  commercial  national  character ;  may  not  a  total 
change  in  circumstances,  a  loss  of  the  capacity  to  curry  on 
the   trade,   be  received,   in   the  absence  of  all  conflicting 
proof,  as  presumptive  evidence  of  an  intention  to  leave  the 
country  ;  as  extricating  the  trade,  carried  on  in  the  time 
of  supposed  peace,  from   the  national  character,  so  far  as 
to  protect  it  from  the  perils  of  war  ?    At  any  rate,  do  not 
reason  and'justice  require  that  this  cliange  of  circumstances 
should  leave  the  ques  ion  open  to  be  decided  on  such  other 
evidence  as  the  v»ar  must  produce  ?  • 

The  great  object  for  v.  hich  an  American  merchant  fixes 
himself  iu  a  foreign  country,  is,- most  generallv,  to  carry 
on  trade  between  that  country  and  his  own.  In  almost 
every  case  of  this  description  before  the  court,  the  claim- 
ant was  a  member  of  a  commercial  house  established  in  the 
United  States ;  and  his  business  abroad  subservient  to  the 
business  at  home.     Tbis  trade  is  annihilated  by  the  Avar. 

If,  while  peace  subsists  between  the  United  States  and 
Great  Britain ;  while  the  American  merchant  possesses 
there  ail  the  commercial  rights  allowed  to  the  citizens  of  a 
friendly  nation,  and  may  carry  on  uninterruptedly  his  trade 
to  his  own  country,  he  is  presumed,  his  intentions  being 
unexplained,  to  intend  remaining  there  always,  and  may 
for  general  convenience,  be  cioathcd  widi  the  commercial 
17 


126  LAW    OF  CHAP.  IT, 

character  of  the  nation  in  which  he  resides,  ought  this  pre- 
sumption to  be  extended  by  his  own  government,  beyond 
the  facts  out  of  which  it  grows,  if  the  interest  of  the  indi- 
vidual be  materially  affected  by  that  extention  ?  Do  not 
reason  and  justice  require  that  we  should  consider  his  ori- 
ginal intention  as  being  only  coextensive  with  the  causes 
which  carried  him  to  and  detained  him  in  the  country — as 
being,  in  its  nature,  conditionral  and  dependent  on  the  con- 
tinuance of  those  causes  ? 

If  such  a  person  Avere  required,  on  his  arrival  In  a  foreign 
country,  to  declare  his  real  intention  on  the  subject  of  re- 
sident, he  would  most  probably  say,  if  he  spoke  honestly, 
*'  I  come  for  the  purpose  of  trade  j  I  shall  remain  while  the 
situation  of  the  two  countries  permits  me  to  carry  on  my 
trade  lawfully,  securely,  and  advantageously ;  when  that 
situation  so  changes,  as  to  deprive  me  of  these  rights,  I 
shall  return."  His  intention  then,  to  reside  in  the  coun- 
try, his  domicil  in  it,  and  consequently  his  commercial  cha- 
racter, unless  he  continued  his  trade  after  war,  would  be 
clearly  limited  by  the  duration  of  peace.  It  would  not  be 
unreasonable  to  say,  that  the  intention,  to  be  implied  from 
his  conduct,  ought  to  have  the  same  limitation. 

To  him  it  seemed  that  a  mere  commercial  domicil  ac- 
quired in  time  of  peace,  necessarily  expires  on  the  com- 
mencement of  hostilities.  Domicil  supposes  rights  incom- 
patible with  a  state  of  war.  If  the  foreign  merchaHt  be 
not  compelled  to  abandon  the  country,  it  is  not  because  his 
commercial  character  confers  on  him  a  legal  right  to  stay, 
but  because  he  is  specially  permitted  to  stay.  If  in  this 
he  was  correct,  it  would  seem  to  follow,  that  if  all  the  le- 
gal consequences  of  a  residence  in  time  of  peace  do  not 
absolutely  terminate  with  the  peace,  yet  the  national  com- 
mercial character  which  that  residence  has  attached  to  the 
individual,  is  not  so  conclusively  fixed  upon  him  as  to  dis- 
qualify him  from  showing,  that,  within  a  reasonable  time 
after  the  commencement  of  hostilities,  he  made  arrange- 


MARITIME    CAPTURES    AND    PRIZES.  127 

ments  for  returning  to  his  own  country.  If  a  residence 
and  trading  after  the  war  be  not  indispensably  necessary  to 
give  the  citizen  merchant  or  his  property  a  hostile  charac- 
ter, yet  removal,  or  measures  showing  a  determination  to 
remove  within  a  reasonable  time  after  the  war,  may  retro- 
act  upon  property  shipped  before  a  knowledge  of  the  war, 
and  rescue  that  property  from  the  hostile  character  attach- 
ed to  the  property  of  the  nation  in  which  the  individual 
resided. 

The  law  of  nations  is  a  law  founded  on  the  great  and 
immutable  principles  of  equity  and  natural  justice.  To 
draw  an  inference  against  all  probability,  whereby  a  citi- 
zen, for  the  purpose  of  confiscating  his  goods,  is  clothed, 
against  his  inclination,  with  the  character  of  an  enemy,  in 
consequence  of  an  act  which,  when  committed,  was  inno- 
cent in  itself,  was  entirely  compatible  with  his  political  cha- 
racter as  a  citizen,  and  with  the  political  views  of  his  go- 
vernment, would  seem  to  subvert  those  principles.  The 
rule  which,  for  obvious  reasons,  applies  to  the  merchant  in 
time  of  peace  or  in  time  of  war;  the  national  commercial 
character  of  the  country  in  which  he  resides,  could  not, 
without  subverting  those  principles,  apply  a  hostile  charac^ 
ter  ta  his  trade  carried  on  during  peace,  so  conclusively  as 
to  prevent  his  protecting  it  by  changing  that  character 
within  a  reasonable  time  after  a  knowledge  of  the  war. 

His  opinion  then  was,  that  a  mere  commercial  domicil 
acquired  by  an  American  citizen  in  time  of  peace,  especi- 
ally if  he  be  a  member  of  an  American  house,  and  is  car- 
rying on  a  trade  auxiliary  to  his  trade  with  his  own  coun- 
try, ought  not  to  be  considered  positively  as  continuing 
longer  than  the  state  of  peace.  The  declaration  of  war  is 
a  fact  which  removes  the  causes  that  induced  his  residence 
in  the  foreign  country  :  they  no  longer  operate  upon  him. 
"When  they  cease,  their  effects  ought  to  cease.  An  inten- 
tion which  they  produced,  ought  not  to  be  supposed  to  con- 
tinue.    The  character  of  his  property,  shipped  before  a 


128  LAW    or  CKAP.  IV. 

knowledge  of  the  war,  ought  not  to  be  decided  absolutely 
bv  his  residence  at  the  time  of.  shipment  or  capture,  but 
ought  to  depend  on  his  continuing  to  reside  and  trade  in 
the  enemy, country,  or  on  his  taking  prompt  jneasures  for 
returning  to  his  own. 

This  is  the  conclusion  to  which  his  mind  would  certainly 
be  conducted)  might  he  permit  it  to  be.  guided  by  the  lights 
of  reason  and  the  principles  of  national  justice.  But  it 
■was  said,  that  a  course  of  adjudication  has  settled  the  law 
to  be  otherwise;  that  the  court  could  not,  without  over- 
turning a  magniuceut  'system,  bottomed  on  the  broad  base 
of  international  law,  and  of  which  ta'i  parts  are  admirably 
■adjusted  to  each  other,  yield  to  the  dictates  of  humanity 
on  •this  particular  question.  Sir  William.  Scott,  it  was 
agreed  at  the  bar,  had,  by  a  seric*  of  decisions,  developed 
the  principles  of  lav/  on  this  subject,  with  a  perspicuity  and 
precision  which  mark  plainly  the  path  they  ought  to  tread. 

He  respected. Sir  Wiliiain  Scotty  as. he  did  every  truly 
great  man,  and  he  respected  his  decisions ;  nor  should  he 
depsart  from  them  on  lighj;  grounds.  But  it  v/as  impossi- 
ble to  consider  them  attentively,  without  perceiving  that 
his  mind  leans  strongly  in  favour  of  the  captors.  Resi- 
dence, for  example,  in  a  belligerent  cguntry,  will  condemn 
the  share  of  a  neuirrd  in  a  house  trading  in  a  neutral  coun- 
try ;  but  residence  in  a  neutral  country  will  not  protect  the 
share  o(  a  belligerent  or  neutral  in  a  commercial  house 
established  in  a  beiligcrept  .couplry.  In  a j  great .  maritime 
country,  depending  on  its  navy  for  its  glpry  and  its  safe- 
ty, the  national  bias  is  pei;haps  so  entirely  In  this  direction, 
that  the  judge,  without  being  conscious  of  the  fact,  must 
feel  its  influence.  However  this  might,  be,,  it  v/as  a  fact 
of  which  he  was  fully  convinced;  and,  on  this  account,  it 
appeared  to  him  to  be  the  more  proper  to  Investigate  rigidly 
the  principles  on  which  Sir,  William  Scott's  decisions  have 
been  made,  and  not  to  extend  them  wliere  such  extension 
may  produce  injustic-. 


MARITIME    CAPTURES    AND    PRIZED.  129 

While  he  made  this  observ^ation,  it  would  betray  a  want 
of  candor,  not  to  accompany  it  with  the  acknowledgment, 
that  he  perceived  in  the  opinions  of  this  eminent  judge,  no 
disposition  to  press  this  principle  with  peculiar  sevtrity 
against  neutrals.  He  had  certainly  not  mitigated  it  when 
applying  it  to  British  subjects. 

With  this  impression  respecting  the  general  character  of 
British  admiralty  decisions,  he  proceeded  to  examine  them 
£o  far  as  they  bear  on  the  question  of  domicil. 

The  case  of  the  Vi^ilantiaQ^  does  not  itself  involve  the 
point :  but  in  delivering  his  opinion,  the  judge  cited  two 
cases  of  capture  which  had  been  quoted  and  relied  on  at 
bar.  In  each  of  these,  the  share  of  the  partner  residing 
in  the  neutral  country  was  restored,  and  that  of  the  partner 
residing  in  the  belligerent  country  was  condemned.  But 
these  decisions  applied  to  a  trade  continued  to  be  carried 
on  during  war. 

In  a  subsequent  case,  the  share  of  the  partner  residing 
in  the  neutral  country  also  was  condemned  ;  and  the  Lords 
Commissioners  said,  that  the  principle  on  which  restitu- 
tion was  decreed  in  each  of  the  first  mentioned  cases,  was, 
*'  That  they  were  merely  at  the  commencement  of  a  war." 
They  said,  that  "  a  person  carrying  on  trade  habitually  in 
the  country  of  the  enemy,  though  not  resident  there,  should 
have  time  to  withdraw  himself  from  that  commerce;  that 
it  would  pi'ess  too  heavily  on  neutrals  to  say,  that  imme- 
diately on  the  first  breaking  out  of  a  war,  their  goods  would 
become  subject  to  confiscation." 

On  these  cases  it  is  to  be  observed,  that  although  the 
two  first  happened  at  the  commencement  of  the  war,  yet 
they  happened  during  a  war ;  and  the  partners  whose  inter- 
est v/as  condemned,  do  not  appear  to  have  discontinued 
their  residence  and  trading  in  the  country  of  the  enemy 
after  wa,r  had  taken  place.  .  The  declaration  "  that  it  wovld 

(')  1  Bobinaon,  1, 


I 


130  LAW    or  CHAP.    IT. 

press  too  heavily  on  neutrals  to  say,  that  immediately  on 
the  first  breaking  out  of  a  war,  their  goods  would  become 
subject  to  conliscationj"  though  applied  to  a  neutral  not 
residing  in  the  belligerent  country,  clearly  discriminates,  in 
a  case  of  capture,  between  the  rights  of  parties  at  the  com- 
mencement of  a  war,  and  at  a  subsequent  period.  But  it 
Was  sufficient  to  say,  that  neither  the  case  itself,  nor  the 
cases  and  opinions  cited  in  it,  applied  directly  to  the  ques- 
tion before  the  court. 

In  the  case  of  the  Harmony ^(^^  the  property  of  Mr.  Mur- 
ray, an  American  citizen  residing  in  France,  was  condemn- 
ed on  account  of  that  residence.  But  Mr.  Murray  had 
removed  to  France  during  the  war,  and  had  continued 
there  for  four  years. 

The  scope  of  the  argument  of  Sir  William  Scott  goes  to 
show,  that  the  single  circumstance  of  residence  in  the  ene- 
my country,  if  not  intended  to  be  permanent,  will  not  give 
the  enemy  character  to  the  property  of  such  resident  cap- 
tured in  a  trade  between  his  own  country  and  that  of  the 
enemy.  It  is  material  that  the  conduct  of  Mr.  Murray, 
subsequent  to  the  capture,  had  great  influence  in  determin- 
ing the  fate  of  his  property.  Had  he  returned  to  the 
United  States  immediately  after* that  event,  much  was  not 
hazarded  in  saying,  that  restitution  would  have  been  de- 
creed. 

In  the  case  of  the  Indian  Chief^Q)  Mr.  Johnson,  an 
American  citizen  domiciliated  in  England,  had  engaged  in 
a  mercantile  entcrprize  to  the  British  East  Indies;  a  trade 
allowed  to  an  American  citizen,  but  prohibited  to  a  Britirih 
subject.  On  its  return  'the  vessel  came  into  Cowcs,  and 
was  seized  for  being  concerned  in  illicit  trade.  Mr.  John- 
son had  then  left  England  for  the  United  States.  He  was 
considered  as  not  being  a  British  subject  at  the  time  of 
capture,  and  restitution  was  decreed. 

C)  2  Robinson,  322.  (•)  3  jRobinsQii,  12. 


MARITIME    CAPTURES    AND    PRIZES.  131 

In  delivering  his  opinion  in  this  case,  Sir  William  Scott 
said,  "  Taking  it  to  be  clear  that  the  national  character  of 
Mr.  Johnson,  as  a  British  merchant,  was  founded  in  resi- 
dence only,  that  it  was  acquired  by  residence,  and  rested 
on  that  circumstance  alone,  it  must  be  held,  that,  from  the 
moment  he  turns  his  back  on  the  country  where  he  has  re- 
sided, on  his  way  to  his  own  country,  he  was  in  the  act  of 
resuming  his  original  character,  and  is  to  1^  considered  as 
an  American.  The  character  that  is  gained  by  residence 
ceases  by  non-residence.  It  is  an  adventitious  character, 
that  n©  longer  adheres  to  him  from  the  moment  that  he 
puts  himself  in  motion,  bona  fide,  to  quit  the  country  sine 
anhno  r evert endi.''^ 

This  case  undoubtedly  proves,  affirmatively,  that  the  na- 
tional character  gained  by  residence  ceases  with  that  resi- 
dence ;  but  he  could  not  admit  it  to  prove,  negatively,  that 
this  national  character  can  be  laid  down  by  no  other  means. 
I  cannot,  for  instance,  admit,  that  an  American  citizeny 
who  had  gained  a  domicil  in  England  during  peace,  and 
was  desirous  of  returning  home  on  the  breaking  out  of 
war,  but  was  detained  by  force,  could,  under  the  authority 
of  this  opinion,  be  treated  as  a  British  trader,  with  respect 
to  his  property  embarked  before  a  knowledge  of  the  war. 

In  the  case  of  ia  Virginie^i^)  the  property  of  Mr.  La- 
pierre,  who  was  probably  naturalized  in  the  United  States, 
but  who  had  returned  to  St.  Domingo,  and  had  shipped  the 
produce  of  that  island  to  France,  was  condemned.  But  he 
Vk^as  considered  as  a  Frenchman,  was  residing  at  the  time 
in  a  Fi-ench  colony,  and  was  engaged  in  a  trade  between 
that  colony  and  the  mother  country.  The  case,  the  judge 
observed,  might  have  been  otherwise  decided,  had  the  ship- 
ment been  made  to  the  United  States. 

In  tne  case  of  the  Jonge  Klass'ma^(^^  Mr.  Ravie  had  a 
license  to  make  certain  importations  as  a  British  subject, 

(")  5  Robinson,  11?.  (v)  5  Robinson,  "265. 


ISa  LAW    01»  CHAP   lY. 

he  had  a  house  in  Amsterdam,  v/ent  there  in  person  during 
the  war,  and  made  the  shipments  under  his  own  inspection 
and  control.  It  was  determined  that,  in  this  transaction, 
he  acted  in  his  character  as  a  Dutch  merchant,  "and  was 
not  protected  by  his  hcense.  Tliis  v/as  a  trading  with  the 
enemy. 

In  the  case  of  the  CittoX^^  the  property  of  jMr.  Bowden, 
a  British  subje|^  residing  in  Holland,  was  condemned.  It 
appeared  that  he  had  settled  in  Amsterdam.,  where  he  had 
resided,  carrying  on  trade  for  six  years.  In  1/9^,  when 
the  French  troops  took  possession  of  that  country,  he  left 
it,  and  settled  in  Guernsey.  The  Ciito  was  a  Danish  ves- 
sel, captured  in  April,  1796,  on  a  voyajge  from  a  Spanish 
port  to  Guernsey,  where  Mr.  Bowden  then  resided.  In 
June  1796,  after  the  capture  of  the  Citto^  he  returned  to 
Holland.  In  argument  it  was  contended  that  it  appeared 
that  British  subjects  might  reside  in  Holiand,  without  for- 
feiting their  British  character,  from  the  proclamation  of 
the  Od  of  September  1796,  which  directs  the  landing  of 
goods  imported,  uuder  that  order,  into  the  United  Provin- 
ces, to  be  certified  by  British  merchants  resident  there. 

The  judge  was  desirous  of  knowing  the  nature  of  Mr. 
Bowden's  residence  in  Holland,  whether  he  had  confined 
himself  to  the  object  of  withdrawing  his  property,  or  had 
been  engaged  in  the  general  traffic  of  the  place.  If  the 
former,  "  he  may,"  said  the  judge,  "  be  entitled  to  resti- 
tution, more  especially  adverting  to  the  order  in  council, 
which  is  certainly  so  worded  as  not  to  be  very  easy  to  be 
applied." 

The  cause  stood  for  further  proofs. 

It  is  plain  that,  in  this  opinion,  the  residence  of  the 
claimant  at  the  time  of  the  capture,  was  not  considered  as  con- 
clusive,  had  it  been  so,  restitution  must  have  been  decreed, 
fc^..'pic:o  Mr.    B.>vvden  was  a  British  subject,  and  at  that 

(■•')  3  liiiimon,  ci. 


MARITIME    CAPTURES    AND    PRIZES.  133 

^time  resided  in  Guernsey.  It  is  equally  apparent,  that, 
had  his  subsequent  residence  in  an  enemy  country  been 
for  the  sole  purpose  of  withdrawing  his  property,  the  law 
was  not  understood  to  forbid  restitution.  The  language 
of  Sir  William  Scott  certainly  ascribes  considerable  influ- 
ence to  the  proclamation,  but  does  not  rest  the  rights  of  the 
claimant  altogether  on  that  fact. 

On  the  17th  of  March  1800,  an  affidavit  of  Mr.  Bowden, 
made  the  6th  of  August  1799,  was  produced,  in  which  he 
stated  his  residence  in  Holland  previous  to  the  invasion  by 
the  French — That  he  quitted  Holland  and  landed  in  Eng- 
land, the  20th  of  January  1795,  v/hence  he  proceeded  to 
Guernsey,  where  he  resided  with  his  family — That,  in  the 
month  of  June  1796,  he  was  under  the  absolute  necessity 
of  returning  to  Holland,  for  the  purpose  of  recovering  debts 
due,  and  effects  belonging  to  the  partnership,  his  partner 
remaining  in  Guernsey.    . 

The  affidavit  then  proceeded  to  state  inany  instances  of 
his  attachment  to  his  own  government,  and  concluded  with 
averring  that  he  was  still  under  the  necessity  of  remaining 
in  Holland,  for  the  purpose  of  recovering  part  of  the  s..id 
debts  and  effects,  which  would  be  impossible  were  he  to 
leave  the  country ;  but  that  it  was  his  intention  to  return 
to  his  native  country,  so  soon  as  his  affairs  would  permit, 
where  his  mother  and  his  relations  resided. 

'jThe  court  observed,  that  it  appeared  from  the  affidavit, 
that  Mr.  Bowden  was  at  that  time  in  Holland;  and  add- 
ed, "  It  would  be  a  sti-ange  act  of  injustice,  if,  while  we 
are  condemning  the  goods  of  persons  of  all  nations  resident 
in  Holland,  we  were  to  restore  the  goods  of  native  Bridsh 
subjects  resident  there.  An  Englishman  residing  and  tra- 
ding in  Holland,  is  just  as  much  a  Dutch  mtrcliant  as  a 
Swede  or  a  Dane  would  be." 

This  case  was  decided  in  1800;  Mr.  Bowden  had  return- 
ed to  Holland  in  1796,  during  the  war,  and  had  continued 
in  the  country  of  the  enemy.     It  is  not  denied  that  lie  con- 

Is' 


134  LAW    OF  CHAP.  IV. 

tinned  his  trade,  and  the  fact  that  he  did  continue  it,  is 
fairly  to  be  inferred,  not  only  from  his  omitting  to  aver  the 
contrary,  but  from  the  language  of  Sir  William  Scott,  "  an 
Englishman  residing  and  trading  in  Holland,"  says  that 
judge,  "  is  just  as  much  a  Dutch  merchant  as  a  Swede  or 
a  Dane  would  be."  'Ihe  case  of  Mr.  Bowden  then,  is  the 
case  of  a  British  subject  who  continued  to  reside  and  trade 
in  the  country  of  an  enemy,  four  years  after  the  commence- 
ment of  hostilities.  His  property  must  have  been  con- 
demned on  one  of  two  principles.  Either  the  judge  must 
have  considered  his  residence  in  Guernsey,  from  January 
1795  to  June  If 96,  as  a  temporary  interruption  of  his  per- 
manent residence  in  Holland,  and  not  as  a  change  of  do- 
niicil,  since  he  returned  to  that  country,  and  continued  in 
it  as  a  trader,  to  the  rendition  of  the  tlnal  sentence,  or  he 
imust  have  decided,  that,  although  Mr.  Bowden  remained, 
and  intended  to  remain,  in  fact,  a  Brijtish  subject,  yet  the 
permanent  national  commercial  character  which  he  acquir- 
ed after  this  capture,  retroacted  on  a  trade  which,  at  the 
time  of  capture,  was  entirely  British,  and  subjected  the 
property  to  confiscation.  On  whichsoever  of  these  prin- 
ciples the  case  was  decided,  it  is  clear  that  the  hostile 
character  attached  to  the  property  of  Mr.  Bowden,  in  con- 
sequcnce  of  his  residing  and  trading  in  the  country  of  the 
enemy  during  the  war.  This  case  is  materially  variant 
from  one  in  which  the  residence  and  trading  took  place 
during  peace,  and  the  capture  was  made  before  a  change  of 
residence  could  be  conveniently  effected. 

The  y>)ia/2r/,(J)  was  also  a  case  of  considerable  interest, 
which  contains  docliines  entitled  to  attentive  consideration. 

Duiing  the  war  between  Great  Britain  and  Holland, 
which  commenced  in  1795,  the  ishmd  of  Demarara  surren- 
dered to  the  British  arms.  By  the  treaty  of  Amiens,  it 
was  restored  to  the  Dutch.  Tiiat  treaty  contained  an  article, 
allowing  the  inhabitants,  of  whatever  country  they  might , 

(.v)  5  JRubinson,  58, 


MARITIME    CArTURE3    AND    PRIZES.  135 

be,  a  term  of  three  years,  to  be  ccmputcd  from  the  notifi- 
cation of  the  treaty,  for  the  purpose  of  disposing  of  their 
property  acquired  and  possessed  before  or  during  the  war, 
in  which  term  they  might  have  the  free  exerci::e  of  their 
religion,  and  enjoyment  of  their  property. 

Previous  to  the  declaration  of  wiir  against  Holland  in 
1803,  the  Diana  and  several  other  vessels  loaded  with  co- 
lonial produce,  were  captured  on  a  voyage  from  Demarara 
to  Holland,  immediately  after  the  declaration  of  war ;  and 
before  the  expiration  of  three  years  from  the  notification  of 
the  treaty  of  Amiens,  Demarara  again  surrendered  to 
Great  Britain.  Claims  to  the  captured  pi'operty  were  filed 
by  original  British  subjects,  inhabitants  of  Demarara,  some 
of  whom  had  settled  in  the  colony  while  it  was  in  posses- 
sion of  Great  Britain,  others  before  that  event.  The  cause 
came  on  after  the  island  had  again  become  a  British  co- 
lony. 

Sir  William  Scott  decreed  restitution  to  those  British 
subjects  who  had  settled  in  the  colony  while  in  British  pos- 
session, but  condemned  the  property  of  those  who  had  set- 
tled there  before  that  time.  He  held,  that  their  settling  in 
Demarara  while  belonging  to  Great  Britain,  afforded  a  pre- 
sumption of  their  intending  to  return,  if  the  island  should  be 
transferred  to  a  foreign  power,  which  presumption,  recogni- 
zed in  the  treaty,  relieved  those  claimants  from  the  necessity 
of  proving  such  intention.  He  thought  it  highly  reasonable 
that  they  should  be  admitted  to  their  jus  post  liminii,  and 
be  held  entitled  to  the  protection  of  British  subjects. 

But  the  property  of  those  claimants  who  had  settled  be- 
fore it  came  to  the  possession  of  Great  Britain,  v/as  con- 
demned. "  Having  settled  without  any  faith  in  British 
possession,  it  cannot  be  supposed,"  he  said,  "  that  they 
would  have  relinquished  their  residence,  because  that  pos- 
session had  ceased.  They  had  passed  from  one  sovereign- 
ty to  another  with  indifference  ;  and  if  they  may  be  sup- 
posed to  have  looked  again  to  a  connexion  with  this  coun- 


136  LAV/   OF  CHAP.  ly. 

try,  they  must  have  viewed  it  as  a  circumstance  that  was 
in  no  degree  likely  to  affect  their  intention  of  continuing 
there." 

"  On  the  situation  of  persons  settled  there  previous  to 
the  time  of  British  possession,"  I  feel  myself,  said  the 
judge,  "  obliged  to  pronounce  that  they  must  be  consider- 
ed in  the  same  light  as  persons  resident  in  Amsterdam. 
It  must  be  understood,  however,  that  if  there  were  among 
these  any  who  have  been  actually  removing,  and  that  fact 
is  properly  ascertained,  their  goods  may  be  capable  of  res- 
titution. All  that  I  mean  to  express  is,  that  there  must 
be  evidence  of  an  intention  to  remove^  on  the  part  of  those 
who  settled  prior  to  British  possession,  the  presumption  not 
being  in  their  favour." 

I'his  having  been  a  hostile  seizure,  though  made  before 
the  declaration  of  war,  the  property  was  held  ecjually  liable 
to  condemnation  as  if  captured,  the  instant  of  that  decla- 
ration. 

So  much  of  the  case  as  relates  to  those  claimants  who 
had  settled  during  British  possession,  proves  that  other  cir- 
cumstances than  an  actilal  getting  into  motion  for  the  pur- 
pose of  returning  to  his  own  country,  may  create  a  pre- 
tiUmpdon  of  intending  to  return  ;  and  may  put  off  that  hos- 
tile commercial  character  which  a  British  subject  residing 
and  trading  in  the  country  of  an  enemy,  is  admitted  to  ac- 
quire. The  settlement  having  been  made  in  a  country 
Avhich,  at  the  time,  was  in  possession  of  Great  Britain, 
though  held  only  by  the  right  of  conquest,  a  tenure 
known  to  be  extremely  precarious,  and  rarely  to  continue 
longer  than  the  war  in  which  the  acquisition  is  made,  is 
sufficient  to  create  this  presumption.  But  the  case  does 
rot  declare  negatively,  that  no  other  circumstances  would 
be  sufiicient. 

He  was  aware  that  the  part  of  the  case  which  applies  to 
claimants  v/ho  had  settled  previous  to  British  possession, 
would  at  first  view,  appear  to  have  a  strong  bearing  on  the 


MAHITIME    CAPTURES    AND    PRIZE!?.  137 

question  before  the  court.  The  shipment  was  in  lime  of 
peace,  and  the  seizure  v/as  made  before  the  declaration  of 
v/ar.  The  trade  Avas  one  in  v/hich  a  British  subject,  in 
time  of  peace,  might  lawi'ally  engage.  However  strong 
his  inteuiion  might  be  to  retuin  to  his  native  country  in  the 
event  of  war,  he  could  not  be  expected  to  manifest  that  in- 
tention before  the  actual  existence  of  v/ar.  The  rcconquebt 
of  tlie  island  followed  the  declaration  of  war  so  speedily, 
as  scarcely  to  leave  time  for  putting  the  resolution  to  re- 
turn in  execution,  had  one  been  formed.  Taking  these  cir- 
cumstances into  view,  the  condemnation  would  seem  to  be 
one  of  extreme  severity.  Yet  even  this  case,  admitting  the 
decision  to  be  perfectly  correct?  did  not,  when  accurate- 
ly examined,  go  so  far  as  to  justify  a  condemnation  under 
such  circumstances  as  belonged  to  some  of  the  cases  at 
bar. 

The  island  having  surrendered  during  war,  such  of  its 
iahabitants  as  were  originally  Sritish  subjects  were  not  al- 
lowed to  derive,  from  this  reanuexation  to  the  dominions  of 
Great  Britain,  the  advantages  to  which  a  voluntary  return 
to  their  own  country,  of  the  same  diite,  would  have  entitled 
them.  They  were  considered  as  if  they  had  been  "  resi- 
dents of  Amsterdam."   . 

But  Sir  William  Scott  observes,  that  "  if  there  are  among 
these  any  who  have  been  actually  removing,  and  that  fact 
is  properly  ascertained,  their  goods  may  be  capable  of  res- 
titution." Aetualhj  removing — when  ?  Not  surely  before 
the  seizure ;  for  that  was  made  in  time  of  peace.  Net 
before  the  declaration  of  war,  when  tlie  original  seizure 
was  converted  into  a  belligerent  capture  ;  for  until  that  de- 
claration was  known,  a  person  v/hosc  intention  to  remain 
or  return  was  dependant  on  peace  or  war,  would  not  be 
tictually  removing.  On  every  principle  of  equity  then,  the 
time  to  which  these  expressions  refer,  must  be  the  surren- 
der  of  Demarara,  or  a  reasonable  time  after  the  declara- 
tion of  war  was   knovva  there.     The  one   period  or  the 


138  LAW    OF  GHAP.  IV. 

Other  would  be  subsequent  to  that  event  which  was  deemed 
equivalent  to  capture. 

It  was  not  unworthy  of  remark,  that  Sir  William  Scotty 
adds  explanatory  words  which  qualify  and  control  the 
words,  "actually  removing,"  and  show  the  sense  in  which 
he  used  them.  "  All"  says  the  judge,  "  that  I  mean  to  ex- 
press is,  that  there  must  be  evidence  of  an  intention  to  re- 
move, on  the  part  of  those  who  settled  prior  to  British  pos- 
session, the  presumption  not  being  in  their  favour." 

It  would  then,  be  rejecting  a  part,  and  a  material  part 
of  the  opinion,  to  say,  that  an  intention  to  remove,  clearly 
proved,  though  not  accompanied  by  the  fact  of  removal, 
would  have  been  deemed  insufficient  to  support  the  claim 
for  restitution. 

Were  there  no  other  circumstances  of  real  importance  in 
this  case,  did  it  rest  solely  on  the  sentiments  expressed 
by  the  judge,  unconnected  with  those  circumstances,  he 
should  certainly  consider  it  as  leaving  open  to  the  claimants 
before  this  court,  the  right  of  proving  an  intention  to  re- 
turn within  a  reasonable  time  after  the  declaration  of  war, 
by,  other  acts  than  an  actual, removal. 

But  there  are  other  circumstances  Vv'iiich  he  could  not 
deem  immaterial;  and,  as  the  opinions  of  a  judge  are  al- 
ways to  be  taken  with  reference  to  the  particular  case  in 
which  they  are  delivered,  he  must  consider  these  expres- 
sions in  connexion  with  the  whole  case. 

The  probability  is,  that  the  chiimants  were  not  merely 
British  merchants.  Though  the  fact  is  not  expressly  sta- 
ted, there  is  some  reason  to  believe  that  they  had  become 
proprietors  of  the  soil,  and  were  completely  incorporated 
with  the  Dutch  colonists.  They  are  not  denominated  mer- 
chants. They  are  spoken  of,  through  the  case,  not  as  re- 
sidents, but  as  settlers.  "  They  had  passed,"  said  Sir  Wil- 
i'am  Scotty  "  from  one  sovereignty  to  another  with  indiffe- 
rence." This  mode  of  expression  appears  to  me  to  indi- 
cate a  more  permanent  interest  In  the  country,  a  more  in- 


MARITIME    C'Al"rUKt:S    AM)    PRIZE?.  133 

timate  connexion  with  it,  than  is  acquired  by  a  merchant 
removing  to  a  foreign  country,  and  residing  there  in  time 
of  peace,  for  the  sole  purpose  of  trade,  and  in  another  of 
the  same  class  of  caseSy  it  is  said,  that,  previous  to  the  last 
war,  the  principal  plantations  of  the  island  were  in  posses- 
sion of  British  planters  from  the  three  British  islands. 

The  voyage,  too,  in  making  which  the  Diana  was  cap- 
tured, v/as  a  direct  voyage  between  the  colony  and  the  mo- 
ther country.  The  trade  was  completely  Dutch,  and  the 
property  of  any  neutral,  wherever  residing,  if  captured  in 
such  a  voyage  during  war,  would  be  condemned. 

But  it  is  still  more  material,  that  those  who  settled  in 
Demarara  before  British  possession,  must  have  settled  du- 
ring the  war,  which  was  terminated  by  the  treaty  of  Ami- 
ens ;  or,  if  they  settled  in  time  of  peace,  must  have 
continued  there  while  the  colony  was  Dutch,  and  while 
Holland  was  at  war  with  Great  Britain.  Whichever  the 
facts  might  be,  whether  they  had  settled  in  an  enemy  coun- 
try during  war,  or  had  continued  through  the  war  a  settle- 
ment made  in  time  of  peace,  they  had  demonstrated  that 
war  made  no  change  in  their  residence.  In  their  cases 
then,  it  might  be  correctly  said,  "  that  war  created  no  pre- 
sumption of  an  intention  to  return." — "  That  they  passed 
from  one  sovereign  to  another  with  indifference." 

He  could  not  consider  claims  under  these  circumstances 
as  being  in  the  same  equity  with  claims  made  by  persons 
who  had  removed  into  a  foreign  country  in  time  of  peace, 
ior  the  sole  purpose  of  trade,  and  whose  trade  would  be 
annihilated  by  war. 

The  case  of  the  Boedcs  Lust  ('^)  differs  from  the  Diana 
only  in  this — the  claimants  are  not  alleged  to  have  been 
originally  British  subjects.  Restitution  was  asked,  because 
the  property  did  not  belong  to  an  enemy  at  the  time  of 
Ghipment,  not  at  the  time  of  si-izure,  nur  at  the  time  of  ad- 

(')  5  Robinson,  207. 


140  LAW   OF  CHAP.    IV. 

judication.  These  grounds  were  all  declared  to  be  insuffi- 
cient. The  original  seizure  was  provisionally  hostile  ;  and 
the  declaration  of  war  consummated  the  right  to  condemn 
the  property  to  the  crown,  as  enemy's  property.  The  sub- 
sequent change  in  the  character  of"  the  claimants,  who  be- 
come British  subjects  by  the  surrender  of  Demarara, 
could  not  divest  it.  "  Where  property  is  taken  in  a  state 
of  hostility,"  said  Sir  WHliam  Scotty  "  the  universal  prac- 
tice has  been  to  hold  it  subject  to  condemnation,  although 
the  claimants  may  have  become  friends  and  subjects  prior 
to  adjudication."  "  With  as  little  effect,"  he  added  "  can 
it  be  contended  that  a  postl'iminhnn  can  be  attributed  to 
these  parties.  Here  is  no  return  to  the  original  character, 
on  which  only  n  jus  postUminn  can  be  raised.  The  origi- 
nal cha/r.cter  at  the  time  of  seizure  and  immediately  prior 
to  the  hostility  which  has  intervened  was  Dutch.  The 
present  character,  v/hich  the  events  of  war  have  produced, 
is  that  of  British  subjects  ;  and  althovigh  the  British  sub- 
ject might,  under  circumstances,  acquire  the y?Mj?J05i;/iwz«?? 
upon  the  resumption  of  his  native  character,  it  never  can  be 
considered  that  the  same  privilege  accrues  upon  the  acqui- 
sition of  a  character  totally  nev/  and  foreign." 

This  opinion  is  certainly  not  decisive;  but  it  appears 
rather  to  favour  than  oppose  the  idea,  that  a  merchant  re- 
siding abroad,  and  taking  measures  to  return  on  the  break- 
ing out  of  war,  may  entitle  hynsclf  to  the  jus  poctUminU^ 
with  respect  to  property  shipped  before  knowledge  'of  the 
war. 

The  President  (')  was  captured  on  a  voyage  from  tht? 
Cape  of  Good  Hope  to  F.urope.  Mr.  Elmslie,  the  claim- 
ant was  born  a  British  subject,  but  claitncd  as  a  citizen  of 
the  United  States.  He  had  removed  to  the  Cape  of  Good 
Hope,  during  the  preceding  war,  and  still  rcc^ided  there. 
The  property  was  condemned.     In  delivering  his  opinion, 

(•)  5  RQblnsc?;,  248. 


MARITIME    CAPTURES    AND    PRIZES.  141 

Sir  WiUiam  Scott  observed.  "  It  is  said  the  claimant  is 
entitled  to  the  benefit  of  an  intention  of  removing  to  Phi- 
ladelphia, in  a  few  months.  A  mere  intention  to  remove, 
has  nfever  been  held  sufficient  without  some  overt  act,  being 
merely  an  intention  residing  secretly  and  undistinguishably 
in  the  breast  of  the  party,  and  liable  to  be  revoked  every 
hour.  The  expressions  of  the  letter  in  which  this  intention 
is  said  to  be  found,  are,  I  observe,  very  weak  and  general 
of  an  intention  merely  mfutiiro.  Were  they  even  much 
stronger  than  they  are,  they  would  not  be  sufficient.  Some- 
thing more  than  mere  verbal  declaration — some  solid  fact 
showing  that  the  party  is  in  the  act  of  withdrawing,  has 
always  been  held  necessary  in  such  cases." 

It  is  to  be  held  in  mind,  that  this  opinion  is  delivered  in 
the  case  of  a  person  who  had  fixed  his  residence  in  an  ene- 
my country,  during  war,  and  that  he  claimed  to  be  the  sub- 
ject of  a  neutral  statCk  For  both  these  reasons,  the  war 
afforded  no  presumption  of  his  intending  to  return  either  to 
his  native  or  adopted  country.  I'o  the  vague  expression 
of  an  intention  to  return  at  some  future  indefinite  time,  no 
influence  can  be  ascribed.  When  the  judge  says  that 
*'  something  more  than  mere  verbal  declaration,  some  solid 
fact  showing  that  the  party  is  in  the  act  of  withdrawing, 
has  always  been  held  necessary  in  such  cases." — I  do  not 
understand  him  to  say,  the  person  must  have  put  himself 
in  personal  motion  to  return ;  must  have  commenced  his 
voyage  homeward,  in  order  to  be  considered  as  in  "  the 
act  of  withdrawing  ;" — Many  other  overt  acts,  as  selling  a 
commercial  establishment ;  stopping  business ;  making 
preparations  to  return,  accompanied  by  declarations  of  the 
intent,  and  not  opposed  by  other  circumstances,  may  be 
considered  a2  acts  of  withdrawing.  • 

In  the  case   of  the   Ocean  (^)  S\r   WUUam  Scott    said, 
*'  This  claim  relates   to  the  situation  of  British  subjects 

C")  5  Robinson,  9L 
19 


142  LAW    OF  CHAP   IV 

settled  in  a  foreign  state,  in  time  of  amity,  and  taking  early 
measures  to  withdraw  themselves,  on  the  breaking  out  of 
war,  the  affidavit  of  claim  states,  that  this  gentleman  had 
been  settled  as  a  partner  in  a  house  of  trade  in  Holland,  but 
that  he  had  made  arrangements  for  the  dissolution  of  the 
partnership,  and  was  only  prevented  from  removing  person- 
ally, by  the  violent  detention  of  all  British  subjects  who 
happened  to  be  within  the  territories  of  the  enemy,  at  the 
breaking  out  of  the  war.  It  would,  I  think,  under  these 
circumstances,  be  going  further  than  the  principle  of  law 
requires,  to  conclude  this  person  by  his  former  occupation, 
and  by  his  present  constrained  residence  in  France,  so  as 
not  to  admit  him  to  have  taken  himself  out  of  the  effect  of 
supervening  hostilities,  by  the  means  which  he  had  used 
for  his  removal." 

If  other  means  for  removal  were  taken,  than  arrange- 
ments for  the  dissolution  of  the  partnership,  they  are  not 
stated  ;  and  it  is  fairly  to  be  presumed,  that  these  arrange- 
ments were  the  most  prominent  of  them,  since  that  fact  is 
alone  selected  and  particularly  relied  upon.  In  his  state- 
ment of  the  case,  the  reporter  says  that  the  claimant  had 
actually  made  his  escape  and  returned  to  England,  in  July, 
1803  ;  (the  trial  was  in  January,  1804)  but  this  must  be  a 
mistake,  or  is  a  fact  not  adverted  to  by  the  judge,  since  he 
says  his  opinion  is,  that  the  claimant  is,  at  the  time,  *'  a 
constrained  resident  of  France." 

He  should  notice  two  other  cases  frequently  cited, 
though  he  had  seen  no  full  report  of  either  of  them. 

The  first  is  the  case  of  Mr.  Ci(rtisses.('^)  This  gentleman, 
who  was  a  British  subject,  had  gone  to  Surinam  in  1766, 
and  from  thence  to  St.  Eustatius  where  he  remained  till 
1776.  •  He  then  went  to  Holland  to  settle  his  accounts,  and 
with  an  intention,  "  as  zvas  said^''  of  returning  afterwards 
to  England  to  take  up  his  final  residence.     In  December, 

(0  3  Robinson,  20.    In  Notls. 


MARITIME    CAPTURES    AND    PRIZES.  143 

i780,  orders  of  reprisal  were  issued  by  England  against 
Holland.  On  the  first  of  January,  1781,  Thf  Snclle  Zeijl- 
der  was  captured,  and,  on  the  5th  of  March,  and  10th  of 
April,  1781,  the  vessel  and  cargo  were  condemned  as  Dutch 
property.  On  the  27th  of  April,  1781,  Mr.  Curtisses  re- 
turned to  England  ;  and  on  an  appeal,  the  sentence  of  con- 
demnation was  reversed  by  the  Lords  of  Appeals,  and  res- 
titution decreed. 

Other  claims  of  Mr.  Curtisses  were  brought  before  the 
court  of  admiralty ;  and,  on  a  full  disclosure  of  these  cir- 
cumstances, restitution  was  decreed,  before  the  decree  of 
the  Lords  in  the  case  of  the  Snclle  Zeylder  was  pronounced. 
The  principle  of  this  decree  is  said  to  be,  that  Mr. 
Curtisses  was  in  itinere^  and  had  put  himself  in  motion, 
and  was  in  pursuit  of  his  original  British  character. 

He  did  not  mean  to  find  fault  with  this  decision;  but 
certainly  it  presents  some  strong  points  more  unfavourable 
to  the  claimant  than  would  be  found  in  some  of  the  cases 
before  the  court.  Mr.  Curt'isses  had  obtained  a  commer- 
cial domicil  in  the  country  of  the  enemy.  At  the  time  of 
the  sailing,  capture  and  condemnation  of  The  Snelle  ZeyU 
der^  he  still  resided  in  the  country  of  the  enemy.  But^  it 
is  said,  he  was  in  itinera^  he  was  in  motion  in  pursuit  of 
his  original  British  character,  what  was  this  journey  he  is 
said  to  have  been  performing  in  pursuit  of  his  original  cha- 
racter ?  He  had  passed  from  one  part  of  the  dominions  of 
the  United  Provinces  to  another.  He  had  moved  his  resi- 
dence from  St.  Eustatius  to  Holland,  where  he  remained 
from  the  year  1776,  till  1781 — a  time  of  sufficient  dura- 
tion for  the  acquisition  of  a  domicil<,  had  he  not  previously 
acquired  it.  This  change  of  residence,  to  make  the  most 
of  it,  is  an  act  too  equivocal  in  itself,  to  afford  a  strong  pre- 
sumption that  it  was  made  for  the  purpose  of  returning  to 
England.  Had  his  stay  in  Holland  even  been  short,  a  co- 
lonial merchant  trading  to  the  jnother  country,  may  so  fre- 
quently be  carried  there  on  the  business  of  his  trade,  that 


144  LAW  or  eiiAP.  IT. 

the  fact  can  afford  hut  weak  evidence  of  an  intention  to 
discontinue  that  trade  :  but  an  interval  of  between  four  and 
five  years  elapsed  betvyeen  his  arrival  in  Holland  and  his 
departure  from  that  country,  during  which  time  he  is  not 
stated  to  have  suspended  his  commercial  pursuits  or  to 
have  made  any  arrangements,  such  as  transferring  his  pro- 
perty to  England,  or  making  an  establishment  there,  which 
might  indicate,  by  overt  acts,  the  intention  of  returning  to 
his  native  countrj".  This  journey  to  Holland  connected 
with  this  long  residence  would  seem  to  be  made  as  a  Dutch 
merchant  for  the  purpose  of  establishing  himself  there,  ra- 
ther than  as  preparatory  to  his  return  to  England.  But  it 
was  said  that  he  intended  to  return  to  England.  How 
was  this  intention  shown  ?  If  not  by  his  journey  to  Holland 
and  his  long  residence  there,  it  was  only  shown  by  his  be- 
ing employed  in  the  settlement  of  his  accounts  while  a  mer- 
chant at  St.  Eustatius,  a  business  in  which  he  would  of 
course  engage,  whatever  his  future  objects  might  be.  This 
equivocal  act  does  not  appear  to  have  been  explained, 
otherwise  than  by  his  own  declarations;  nor  does  it  appear 
that  these  declarations  were  made  previous  to  the  capture. 

But  could  it  be  even  admitted  that  the  journey  from  St. 
Eustatius  to  Holland  was  made  with  a  view  of  passing  ul- 
timatel)'  from  Holland  to  England,  yet  the  intention  was 
not  to  be  immediately  executed.  The  time  of  carrying  it 
into  effect,  was  remote  and  uncertain, — subject  to  so  many 
casualties,  that,  had  not  the  war  supervened,  it  might 
never  have  been  carried  into  effect. 

But  laving  aside  these  circumst:mccs,  the  case  proves  on- 
ly that  being  in  iiiucrc^  in  pursuit  of  the  native  character, 
divests  the  enemy  character  acquired  by  residence  and  tra- 
ding ;  it  is  not  insinuated  that  this  character  can  be  divest- 
ed by  other  means. 

'M.rtWJiitclitW.s  case,  though  one  of  great  severity,  did 
not,  he  thought,  overturn  the  princij)lc,  he  was  endeavour- 
ing to  sustain.     Mr.  W.  went  to  St.  Eustasia  but  a  few  days 


MARITIME    CAFTURES    AND    PRIZE3.  14* 

before  Admiral  Rodney  and  the  British  forces  made  their 
appearance  before  that  place.  But  it  war,  proved  that  he 
v/ent  for  the  purpose  of  making  a  permanent  setllcment 
there.  No  intention  to  return  appears  to  have  been  alleged, 
the  recency  of  his  establishment  seems  to  have  been  the 
point  on  which  his  claim  rested. 

This  case,  in  principle,  bore  on  that  before  the  court,  so 
far  only  as  it  proves  that  war  does  not,  under  all  circum- 
stances, necessarily  furnish  a  presumption,  that  the  fo- 
reigner residing  in  the  enemy  country,  intends  to  return  to 
his  own.  The  circumstances  of  this  case,  so  far  as  we  un- 
derstand them,  were  opposed  to  the  presumption,  that  war 
could  effect  Mr.  Wlntchdl^s  residence.  War  actually  ex- 
isted at  the  time  of  his  removal;  and  had  that  %ct  been 
known  to  him,  there  would  have  been  no  hardsnip  in  his 
case.  He  would  have  voluntarily  taken  upon  himself  the 
enemy  character,  at  the  same  time  that  he  took  upon  him- 
self the  Dutch  character.  There  is  reason  to  believe  that 
the  court  considered  him  in  equal  fault  with  a  person  re- 
moving to  a  country  known  to  be  hostile.  St.  Eustatius 
was  deeply  engaged  in  the  American  trade,  which,  from  the 
character  of  the  contest,  was,  at  that  time,  considered  by 
England  as  cause  of  war-,  and  was  the  fact  which  drew  on 
that  island  the  vengeance  of  Britain.  Mr.  JVhitd/i  il  could 
have  fixed  himself  there  only  for  the  purpose  of  prosecuting 
that  trade.  "  He  went,"  says  Sir  WilUam  Scoft^  *'  to  a 
place  which  had  rendered  itself  parcicubrl)'  obnoxious  bv  its 
conduct  in  that  war."  This  was  certain!)^  a  circumstance 
which  could  not  be  disregarded,  in  deciding  on  the  proba- 
bility of  his  intending  to  remain  in  the  country  in  the  event 
of  war. 

These  were  the  cases  which  appeared  to  him  to  apply 
most  strongly  to  the  question  before  the  court.  No  one 
of  them  decides,  in  terms,  that  the  property  of  a  British 
subject  residing  abroad  in  time  of  amity,  which  was  ship- 
Dcd  before  a  knowledge  of  war.  and  cnptured  by  a  British 


146  LAW    OF  CHAP.    IT. 

cruiser,  shall  depend,  conclusively  on  the  residence  of  the 
claimant  at  the  time  of  capture,  or  on  his  having,  at  that 
time,  put  himself  in  motion  to  change  his  residence.  In 
no  case,  Which  he  had  had  an  opportunity  of  inspecting,  had 
he  seen  a  dictum  to  this  effect,  the  cases  certainly  required 
an  intention,  on  the  part  of  the  subject  residing  and  tra- 
ding abroad,  to  return  to  the  subject's  own  country,  and 
that  this  intention  should  be  manifest  by  overt  acts;  but 
they  did  not,  according  to  his  understanding  of  them,  pre- 
scribe any  particular  overt  act,  as  being  exclusively  admis- 
sible ;  nor  did  they  render  it  indispensable  that  the  overt 
act  should,  in  all  cases,  precede  the  capture.  If  a  British 
subject,  residing  abroad  for  commercial  purposes,  takes  de- 
cided measures,  on  the  breaking  out  of  war,  for  returning  to 
his  native  country,  and  especially  if  he  should  actually  re- 
turn, his  claim  for  the  restitution  of  property  shipped  be- 
fore his  knowledge  of  the  war,  would,  he  thought,  be  fa- 
vourably received  in  a  British  court  of  admiralty ;  although 
his  actual  return,  or  the  measures  proving  his  intention  to 
return,  were  subsequent  to  the  capture.  Thus  understand- 
ing the  English  authorities,  he  did  not  consider  them  as  op* 
posing  the  principle  he  had  laid  down. 

An  American  citizen,  having  merely  a  commercial  do- 
micil  in  a  foreign  country  is  not,  he  thought,  under  the 
British  authorities,  concluded,  by  his  residence  and  trading 
in  time  of  peace,  from  averring  and  proving  an  intention  to 
change  his  domicil  on  the  breaking  out  of  war,  or  from 
availinghimself  of  that  proof  in  a  court  of  admiralty.  The 
intrinsic  evidence  arising  from  the  change  in  his  situation, 
produced  by  war,  renders  it  extremely  probable  that,  in  this 
ncAV  state  of  things,  he  must  intend  to  return  home,  and 
will  aid  in  the  construction  of  any  overt  act  by  which  such 
intention  is  manifested.  Dissolution  of  partnership  ;  dis- 
continuance of  trade  in  the  enemy  country  ;  a  settlement 
of  accounts^  and  other  arrangements  obviously  preparatory 
to  a  change  of  residence,  were,  in  his  opinion,  such  overt 


MARITIME    CAPTURES    AND    PRIZES.  147 

acts   as   might  under  circumstances   showing  them  to   be 
made  in  good  faith,  entitle  the  claimant  to  restitution. 

He  did  not  perceive  the  mischief  or  inconvenience  that 
could  result  from  the  establishment  of  this  principle.  Its 
operation  is  confined  to  property  shipped  before  a  know- 
ledge of  the  war.  For  if  shipped  afterwards,  it  is  clearly- 
liable  to  condemnation,  unless  it  be  protected  by  the  prin- 
ciple that  it  is  merely  a  withdrawing  of  funds.  Being  con- 
fmed  to  shipments  made  before  a  knowledge  of  the  war, 
the  evidence  of  an  intention  to  change  or  continue  a  resi- 
dence in  the  country  of  the  enemy,  must  be  speedily  given. 
A  continuance  of  trade  after  the  war,  unless  perhaps  under 
very  special  circumstances,  and  for  the  mere  purpose  of 
closing  transactions  already  commenced,  would  fix  the  na- 
tional character  and  the  domicil  previously  acquired.  An 
immediate  discontinuance  of  ti'ade  and  arrangements  for  re- 
moving followed  by  actual  removal  within  a  reasonable 
time,  unless  detained  by  causes  which  might  sufficiently  ac- 
count for  not  removing,  would  fix  the  intention  to  change 
the  domicil  and  show  that  the  intention  to  return  had 
never  been  abandoned ;  that  the  intention  to  remain  always, 
had  never  been  formed.  It  was  a  case,  in  which,  if  in  any 
that  can  be  imagined,  justice  required  that  the  citizen, 
having  entirely  recovered  his  national  character  by  his 
own  act,  and  by  an  act  which  shows  that  he  never  intended 
to  part  with  it  finally,  should,  by  a  species  of  the  juat  post- 
ihninii^  be  allowed  to  aver  the  existence  of  that  character 
at  the  instant  of  capture.  In  the  establishment  of  such  a 
principle,  he  could  perceive  no  danger.  In  its  rejection, 
he  thought  he  perceived  much  injustice.  An  individual 
whose  residence  abroad  is  certainly  innocent  and  lav/ful, 
perhaps  advantageous  to  his  country,  who  never  intended 
that  residence  to  be  permanent,  or  to  continue  in  time  of 
war,  finds  himself  against  his  will,  clothed  with  the  charac- 
ter of  an  enemy,  so  conclusively  that  not  even  a  return  to 
his  native  countrv  can  rescue  from  that  character  ;>iid  from 


148  LAW    OF  CHAP.    IV. 

confiscation,  property  shipped  in  the  time  of  real  or  sup- 
posed peace.  His  sense  of  justice  revolted  from  such  a 
principle. 

In  applying  this  opinion  to  the  claimants  before  the  court, 
he  should  be  regulated  by  their  conduct  after  a  knowledge 
of  the  war.  If  they  continue  their  residence  and  trade, 
afcer  that  knowledge  ;  at  any  rate,  after  knowing  that  the 
repeal  of  the  orders  in  council  was  not  immediately  follow- 
ed by  peace,  their  claim  to  restitution  would  be  clearly  un-' 
sustainable.  If  they  took  immediate  measures  for  return- 
ing to  this  country,  and  had  since  actually  returned,  or  had 
assigned  sufficient  reasons  for  not  returning,  their  property, 
he  thought,  might  be  capable  of  restitution.  Some  of  the 
claimants  would  come  within  one  description,  some  withia 
the  other.  It  v/ould,  under  the  opinion  given  by  the  court, 
be  equally  tedious  and  useless  to  go  through  their  cases. 

His  reasoning  has  been  applied  entirely  to  the  case  of 
native  Americans.  This  course  has  been  pursued  for  two 
reasons.  It  presents  the  argument  in  what  he  thought  its 
true  light ;  and  the  sentence  of  condemnation  makes  no 
discrimination  between  native  and  other  citizens. 

The  claimants  were  natives  of  that  country  with  which 
we  were  at  war,  who  have  been  naturalized  in  the  United 
States.  It  was  impossible  to  deny  that  many  of  the  strong- 
est arguments,  urged  to  prove  the  probability  that  war  must 
determine  .the  native  American  citizen  to  abandon  the 
country  of  the  enemy  and  return  home,  are  inapplicable,  or 
apply  but  feebly  to  citizens  of  this  description.  Yet  he 
thought  it  was  not  for  the  United  States,  in  such  a  case  as 
this,  to  discriminate  between  them.  He  would  not  pretend 
to  say  what  distinctions  may  or  may  not  exist  between 
these  two  classes  of  citizens,  in  a  contest  of  a  dliTercnt  de- 
hcriplion.  But  in  a  contest  between  the  United  States,  and 
the  naturalized  citizen,  in  a  claim  set  up  by  the  United 
States  to  confiscate  his  property,  the  citizen  might,  he 
thought,  protect  himself  by  any  defence  yvhich  would  pro- 


MARITIME    CAPTURES    AND    PRtZES.  14d 

ttect  a  native  American.  In  the  prosecution  of  such  a  claim, 
the  United  States  were,  if  he  might  be  excused  for  borrow^ 
ing  from  the  common  law  a  term  peculiarly  appropriate, 
estopped  from  saying  that  they  have  not  placed  this  adopted 
son  on  a  level  with  those  bom  in  their  family/**) 

y.  Wherever  even  a  mere  factory  is  founded  in  the  east- 
ern parts  of  the  world,  European  persons  trading  under  the 
shelter  and  protection  of  those  establishments,  are  con- 
ceived to  take  their  national  character  from  that  association 
under  which  they  live  and  carry  on  their  commerce.  It  is 
a  rule  of  the  law  of  nations  applying  peculiarly  to  those 
countries,  and  is  different  from  what  prevails  ordinarily  in 
Europe  and  the  western  parts  of  the  world,  in  which  men 
take  their  present  national  character  of  the  country  in  which 
.they  are  resident ',  and  this  distinction  arises  from  the  na- 
ture and  habit  of  the  countries  :  In  the  western  parts  of  the 
world  alien  merchants  mix  in  the  society  of  the  natives; 
access  and  intermixture  are  permitted,  and  they  become 
incorporated  to  almost  the  full  extent.  But  in  the  east,  from, 
the  oldest  times,  an  immiscible  character  has  been  kept  up  | 
foreigners  are  not  admitted  into  the  general  body  and  mass 
of  the  society  of  the  nation  ;  they  continue  strangers  and 
sojourners  as  all  their  fathers  were. — Doris  a7nara  suam 
noil  intermiscuxt  undcan ;  not  acquiring  any  national  cha- 
racter under  the  general  sovereignty  of  the  country,  and 
not  trading  under  any  recognized  authority  of  their  own 
original  country,  they  have  been  held  to  derive  their  pre- 
sent character  from  that  of  the  association  or  factory,  under 
whose  protection  they  live  and  carry  on  their  trade. 

Thus  with  respect  to  establishments  in  Turkey,  it  was 
declared  that  a  merchant  carrying  on  trade  at  Smyrna  un- 
der the  protection  of  the  Dutch  consul  at  Smyrna,  was  to 
be  considered  a  Dutchman,  and  his  property  was  condtmn- 
ed  as  Dutch  property.     The  same  in  China,  and  generally 

(<!>  Per  Marshall,  C  J.  T!ie  Venus.  Supreme  Court  cf  the  U.  S.  Fe- 
bruary T.   1814.  M.  S. 

«0 


150  LAW    Oi*  CHAP.  IV 

throughout  the  East,  persons  admitted  into  a  factory,  are 
not  known  in  their  own  peculiar  national  character ;  and 
being  not  admitted  to  assume  the  character  of  the  country, 
they  are  considered  only  in  the  character  of  that  association 
or  factory. 

But  these,  principles  are  considered  not  to  apply  to  the 
territories  occupied  by  the  British  in  Hindostan ;  because, 
though  the  sovereignty  of  the  Mogul  is  occasionally  brought 
forward  for  purposes  of  policy,  it  hardly  exists  otherwise 
than  as  a  phantom  :  It  is  not  applied  in  any  way  for  the  re- 
gulation of  their  establishments.  Great  Britain  exercises 
the  power  of  declaring  war  and  peace,  which  is  among  the 
strongest  marks  of  actual  sovereignty,  and  if  the  high,  and 
empyrean  sovereignty  of  the  Mogul  is  sometimes  brought 
dov/n  from  the  clouds,  as  it  were,  for  purposes  of  policy,  it, 
by  no  means  interferes  with  the  actual  authority  which  that 
country,  and  the  East  India  company,  a  creature  of  that 
country,  exercises  there  with  full  effect.  The  law  of  trea- 
son would  apply,  to  Europeans  living  there,  in  full  force. 
It  is  nothing  to  say  that  some  particular  parts  of  the  Eng- 
lish civil  code  are  not  applicable  to  the  religious  or  civil 
habits  of  the  Mahomedan  or  Hindoo  natives  ;  and  that 
they  are,  on  that  account,  alldwed  to  live  under  their  own 
laws.  This  is  no  exception  ;  for  with  respect  to  internal 
regulations,  there  is  in  Great  Britain,  a  particular  sect,  the 
Jews,  that  in  matters  of  legitimacy,  and  on  other  important 
subjects,  are  governed  by  their  own  particular  regulations, 
and  not  by  all  the  municipal  laws  of  that  country,  seme  ot 
which  are  totally  inapplicable  to  them.  It  is,  besides,  obser- 
vable, that  the  British  acts  of  parliament  and  treaties  have 
been  by  no  means  scrupulous  in  later  times,  in  describing 
the  country   in   question   as   the  territory   of  Great  Bri- 

OS  li'jcinson,  12.  The  Indian  Cliief. 


i 


MARITIME    CAPTURES    AND    PRIZES.  151 

In  a  case  which  occurred  during  the  late  war  with 
Great  Britain,  it  was  con; ended  by  the  American  captors 
that  the  privileges  granted  to  British  subjects  in  the  Portu- 
guese dominions  by  the  treaty  of  1810,  between  Great  Bri- 
tain and  Portugal,  completely  recognized  the  exclusive  na- 
tional character  of  these  subjects  ;  and  the  case  was  likened 
to  those  above  cited  in  the  eastern  parts  of  the  world. 
But  it  is  now  settled  by  the  lords  of  appeal,  that  a  British 
born  subject  resident  in  the  English  factoiy  at  Lisbon,  so 
far  possesses  the  Portuguese  character  as  that  his  trade 
wivh  the  enemies  of  his  native  countr}  is  not  illeg?l.(Q 
Upon  the  footing  of  authority,  therefore,  the*case  for  the 
captors  was  not  made  out. 

And  upon  principle  it  is  as  difficult  to  maintain — the  8th 
and  10th  articles  of  the  treaty  secure  no  more  than  the  free- 
dom of  trade  and  the  right  to  have  all  causes  tried  by  a 
special  tribunal,  according  to  the  laws  and  customs  of  Por- 
tugal. Still  however,  it  is  an  incorporation  of  British  resi- 
dents into  the  general  commerce  of  the  country.  They  are 
still  subject  to  the  general  laws  respecting  revenues  and 
taxes ;  to  the  general  duties  of  qualified  allegiance,  and  to 
the  general  regulations  of  social  and  domestic,  as  well  as 
commercial  iatercourse.  Far  different  is  this  from  the  case 
of  eastern  factories,  where  the  laws  of  the  factory  govei-n 
the  parties  who  claim  protection  under  it,  and  no  general 
amenability  to  the  laws  of  the  country,  is  either  claimed  or 
exercised.  It  was  therefore  decided  that  British  residents 
in  the  dominions  of  Portugal  take  the  character  of  their 
domicil,  and  as  to  dll  third  parties,  are  to  be  deemed  Por- 
tuguese subjects. (^) 

8.  Where  goods  were  shipped  by  a  house  of  trade  in  the 
enemy's  country  to  a  house  of  trade  in  a  neutral  country., 

C)  4  Robinson,  255.  Note.  Tlie  Danaos. 

(s)  Per  Stort,  J.  The  St.  Indiaiio.  Circuit  Court  of  the  V.  S,  for 
the  Massachusetts  disti-ict,  October  T.  18U.  M.  S, 


152  LATV    OF      «  CHAP.   IV. 

both  consisting  of  the  same  partners,  all  native  subjects  of 
the  enemy,  two  of  whom  were  domiciled  in  the  enemy's 
country,  and  one  in  the  neutral  country-r—the  captors  con- 
tended that  the  share  of  the  latter  was  liable  to  condemna- 
tion, as  being  the  property  of  a  person  connected  in  a  house 
of  trade  in  the  enemy's  country,  and  continuing  that  con- 
nexion after  and  during  the  war,  the  property  having  beea 
purchased  and  shipped  oti  the  account  and  risk  of  the 
same  house. 

In  this  case,  the  learned  judge,  by  whom  it  was  de;ter- 
mined,  observed  that  in  general  the  national  character  of  a 
person  is  tq  be  d^'cided  by  that  of  his  domicil :  If  that  be 
neutral,  he  acquires  the  neutral  character ;  if  otherwise,  he 
is  affected  with  the  enemy  character.  But  the  property  of 
a  person  may  acquire  a=  hostile  character,  altogether  inde- 
pendent of  his  own  peculiar  character,  derived  from  resi- 
dence. In  other  words,  the  origin  of  the  property,  or  the 
traffic  in  which  it  is  engaged,  may  stamp  it  with  a  hostile 
character,  although  the  owner  may  happen  to  be  a  neutral 
domiciled  in  a  neutral  country^  Thus  the  produce  of  an 
estate  belonging  to  a  neutral  in  an  enemy's  colony,  is  im- 
pressed with  the  character  of  the  soil,  notwithstanding  a 
neutral  residence. ('-)  So,  if  a  vessel  purchased  in  the  ene- 
my's country,  is  by  constant  and  habitual  occupation  em- 
ployed in  the  trade  of  that  country  during  the  war,  she  is 
deemed  a  vessel  of  the  country  from  which  she  is  so  navi- 
gating, whatever  may  be  tl^p.  cjomicil  of  the  owner.(')    PJe 

(^)  5  Robinson,  20.  TUc  Plianlx. 

(')  Vide  Siiprn,  Clinp.  Ill  §  6  And  analogojis,  tlioug-li  mere  remotely, 
are  tint  cases  oC  property  condemned  for  resistance  to  search,  (Chap.  III. 
§  19.)  for  breacli  of  hloekade,  (Chap.  VI.  §  11.)  as  contraband  of  war,  (i6" 
<5  y.)  and  for  sailing  H.ider  the  flag  and  pass  or  license  of  the  enemy, 
(Ciiap.  V.)  So  also  tlic  property  of  cifrzens  or  subjects  of  the  belligerent 
state  engaged  in  trade  with  tlie  enemy,  is  confiscated  upon  the  ground 
that  ii  l3  taken  adhering  to  the  enemy,  and  therefore  the  proprietor  is, 
fro  hat  vicc^o  he  considered  as  an  enemy.  1  Robinson,  196  The  Nel)/, 
i]i  nvtis  to  the  Hoop.    These  arc  all  cases  of  an  ad^piion  of  th.c  enemy 


MARITIME    CAPTURES    A^V    PRIZES.  153 

therefore  agreed  that  it  was  a  doctrine  supported  by  strong 
principles  of  equity  and  propriety,  that  there  is  a  traffic 
which  stamps  a  nraional  character  on  the  individual  inde- 
pettdent  of  that  character,  which  mere  personal  residence 
may  give  him. 

And  he  thought  the  case  then  before  the  court  clearly 
within  the  range  of  the  principle  stated.  Here  was  a  house 
of  trade  composed  entirely  of  British  subjects  established 
in  the  enemy's  country,  and  habitually  and  continually  c.;r- 
rying  on  its  trade,  with  all  the  advantages  and  protection 
of  British  subjects.  It  was  true  one  partner  is  domiciled 
in  the  neutral  country — but  for  what  purpose  ?  For  ought 
that  appeared,  for  purposes  exclusively  connected  with  the 
enemy  establishnaeut.  At  all  events  the  whole  property 
embarked  in  its  commercial  enterprises  centered  in  that 
house  and  received  its  exclusive  managementand  direction 
from  it.  Under  such  circumstances,  the  house  was  as 
purely  hostile  in  its  domicil  (if  he  might  use  the  expres- 
sion) and  in  its  commerce,  as  it  could  be  if  all  the  partners 
resided  in  the  enemy's  territory.  If  the  case,  therefore, 
were  new,  he  did  not  perceive  how  it  could  be  extracted 
from  the  grasp  of  confiscation   on  account  of  its  thorough 

character,  rendering  the  property  liable  to  capture  and  condemnation, 
without  regard  to  the  personal  domicil  of  its  owner.  The  princi])le  upon 
which  is  foHnded  the  British  rule  of  the  war  of  1756,  is  quite  different, 
and  proceeds  upon  the  doctrine  that  a  neutral  has  no  right  to  carry  on  a 
trade  in  time  of  war,  from  which  he  was  exqluded  in  tmie  of  peace.  Even 
that  rule,  itself,  in  its  or  gin,  was  supported  upon  the  sound  and  true 
principle  of  adoption,  by  means  of  special  licenses  or  passes  granted  by 
the  French  (then  at  war  with  Great  Britain)  to  tlie  Dutch,  (then  neutral) 
permitting  them  to  engage  in  the  colonial  trade  of  France.  There  is  all 
the  difference  between  this  principle  and  the  modern  British  doctrine, 
(invented  during  the  war  of  the  French  revolution,  to  justif"  a  revival 
and  undue  extension  of  the  rule  of  the  war  of  1756)  that  there  is  between 
the  granting  by  the  enemy  of  a  special  license  to  the  subjects  of  the  bel- 
gerent  state  to  trade  with  a  neutral  country,  (vide  ivfra.  Chap.  V.  §  5.) 
and  a  general  exemption  «f  stjcb  trade  from  capture  by  the  enemy,  {i'ids 
/*.  §5,) 


154  LAW    OF  CHAP.  IV. 

incorporation  into  the  •enemy  character.  But  how  stood 
the  case  upon  the  footing  of  authority  ?  It  was  agreed  that 
no  decision  comes  up  to  the  point,  and  that  the  court  was 
called  upon  by  the  captors  to  promulgate  a  novel  doctrine. 
If,  however,  he  was  not  greatly  deceived,  it  would  be  found 
on  an  attentive  examination,  that  there  is  a  strong  current 
of  authority  all  setting  one  wa}'.  From  the  cases  of  the 
Jacobus  Johannes  and  the  Osprey,  an  erroneous  notion  had 
been  adopted  that  the  domicil  of  the  parties  was  that  alone 
to  which  the  court  had  a  right  to  r,esort  in  prize  causes. 
But  in  the  case  of  Coopman,  those  cases  wereput  upon  their 
true  foundations,  as  cases  merely  at  the  com7ne7icement  of 
a  war  in  reference  to  persons  Avho,  during  peace,  had  ha- 
bitually carried  on  trade  ;n  the  enemy's  country,  though  not 
resident  there,  and  were  therefore  entitled  to  have  time  to 
withdraw  from  that  commerce.  But  the  Lords  of  Appeal 
in  that  case  expressly  laid  it  down,  that  if  a  person  entered 
into  a  house  of  trade  in  the  enemy's  country  in  time  of  war, 
or  continued  that  connexion  during  the  war,  he  should  not 
protect  himself  by  mere  residence  in  a  neutral  country.C') 
Now  he  Vv'as  utterly  at  a  loss  to  know  how  terms  more  ap- 
propriate could  be  employed  to  embrace  the  present  case, 
which  was  that  of  a  connexion  in  a  house  of  trade  in  the 
enemy's  country  continued  durhig  the  ivor.  This  doctrine 
held  by  the  highest  authority  known  in  the  English  prize 
law  has  been  repeatedly  recognized  and  enforced  by  the 
same  learned  court. (')  The  very  exception  was  taken  in 
the  cases  of  the  Portland,  &c.('")  as  to  Mr.  Ostermeyer, 
who,  though  domiciled  at  Blankanese  (in  a  neutral  coun- 
try) was  alleged  to  be  engaged  in  the  trade  of  Ostend  (in 
the  enemy's  country^  either  as  a  partner  or  as  a  sole  tra- 
der.    In  thofic   cases  the   general  principle  was  explicitly 

('')  1  liolfinnun,  1.     The  Vig-ilantia, 
(')  2  Jf?o««sor:,  C.V].     Thci  Susa. 
i'^Yo  liubincr:.:,  41. 


iTARITIME    CAPTURES    AND    PRIZE?.  155 

admitted,  and  one  vessel,  the  Jonge  Amelia,  eventually 
condemned  on  that  ground.  It  was  a  mistake  of  the  learn- 
ed counsel  for  the  claimant,  that  the  court  in  those  cases 
confined  the  further  proof  to  the  fact  whether  Mr.  Oster- 
meyer  was  sole  trader  at  Ostend  ;  it  will  appear  on  a  care- 
ful examination  that  further  proof  was  also  required  as  to 
the  alleged  partnership,  and  particularly  as  to  a  let4^  in  the 
Frau  Louisa  pointing  to  that  partnership.  In  the  Jonge 
Klassina,  which  was  a  very  strong  case  of  the  applicaticn 
of  the  same  doctrine,  Sir  William  Scott  avows  it,  and  de- 
clares that,  a  man  may  have  mercantile  concerns  in  two 
countries,  and  if  he  acts  as  a  merchant  of  both,  he  must  be 
liable  to  be  considered  as  a  subject  of  both,  with  regard  to 
the  transactions  originating  respectively  in  those  coun- 
tries.(")  The  case  of  the  Herman,  so  far  from  impugning 
the  principles,  evidently  proceeds  upon  the  admission  of  it; 
and  he  thought  it  might  be  affirmed  without  rashness  that 
net  a  single  authoritative  dictum  exists  Vvhich  can  shake  its 
force.  It  had  been  attempted  to  distinguish  those  cases 
from  that  before  the  court,  by  alleging  that  none  of  them 
present  the  fact  of  a  shipment  made  from  a  house  in  the 
enemy  country  to  its  connected  house  in  the  neutral  coun- 
try. ^But  it  did  not  seem  to  him  that  this  difference  pre- 
sented any  solid  ground  on  which  to  rest  a  favourable  dis- 
tinction. 

On  the  whole,  he  was  of  opinion  that  the  shipment  in 
this  case  being  made  by  a  house  in  the  enemy's  country  for 
their  own  account,  in  a  voyage  originating  in  that  country 
must  be  deemed  enemy's  property,  and  that  the  share  of 
the  partner  residing  .in  the  neutral  country  must  follow 
the  fate  of  the  shares  «f  his  co-partners. (°) 

(^')  5  Robinson  S02. 

(<-■)  Per  Stort,  J.  The  St.  Indiano.  Circuit  Court  for  the.Massachu- 
setts  dictric*,  October  T.  1(J14.  M.  S. 


15G  LAW   OF  CHAP.    iVc 

The  cnptors  had  farther  contended  in  reference  to  othef 
claimants  before  the  court,  that  the  same  principle  applies 
in  cases  where  a  house  in  the  enemy^s  country  ships  goods 
to  one  of  its  partners  domiciled  in  a  neutral  country,  either 
in  his  single  name,  or  to  a  neutral  house  there,  of  which  he 
is  also  a  partner ;  and  e  converso  where  a  partner  of  a  neu- 
tral h<jibe  is  domiciled  in  the  enemy's  country,  and  ships 
to  such  house  goods,  the  manufactures  of  that  countrj-. 

In  respect  to  the  two  former  cases,  the  learned  judge 
agreed  at  once  to  the  position,  if  the  shipment  be  really 
made  on  the  account  and  for  the  benefit  of  the  house  in  the 
enemy's  country.  For  in  such  case  the  neutral  partner  or 
house  acts  but  as  their  agent,  and  the  whole  property  and 
pr  ;fus  of  every  enterprize  rest  in  the  hostile  house;  and 
indeed,  it  is  wholly  immaterial  to  whom  the  consignment 
may  be,  whether  to  a  partner  or  a  stranger;  the  property  tn 
its  origin,  tr  aisit  and  return,  is  thoroughly  imbued  with  the 
enemy  character.  And  the  same  might  be  affirmed  of  the 
third  case,  if  the  party  so  domiciled  in  the  enemy's  country 
be  really  engaged  in  the  general  commerce  of  that  country 
for  the  exclusive  benefit  of  his  neutral  house.  For  although 
in  general,  the  residence  of  a  stationed  agent  in  the  ene- 
my's country  will  not  affect  the  trade  of  the  neutral  princi- 
pal with  a  hostile  character,  yet  this  is  true  only  as  to  the 
ordinary  trade  of  a  neutral,  as  such  carried  on  in  the  ordi- 
nary manner.  But  the  principles  contended  for  by  the 
raptors  spread  over  a  wider  surflice,  and  extend  to  cases 
where  a  shipment  has  originated  in  a  house  of  trade  in  the 
eiemy's  country,  consigned  either  to  a  partnei-,  or  to  a 
house,  in  a  neu:ral  country,  of  which  such  partner  is  a 
member,  although  the  shipment  be  bona  fulc  exclusively  on 
account  and  risk  of  such  neutral  partner  or  house.  And 
the  declaration  of  Sir  William  Scott  in  the  Jonge  Klassina, 
already  quoted,  was  relied  on  as  an  authority  which  sup- 
ports the  argument.  But  the  learned  judge  did  not  think 
that  the  language  of  Sir  Wjljiiam  Scott,  correctly  consider- 


1 


MAniTTME    CAPTURES    AND    PRIZES.  157 

cd,  admitted  of  this  intcrprotatioti.  The  latter  Is  merely 
alluding  to  the  origin  of  transactions  which  exclusively  re* 
gard  the  interests  of  a  house  of  trade  established  in  a  par- 
ticular country,  and  not  of  transactions  where  it  acts  mere- 
ly as  an  agent  or  shipper  for  other  persons.  To  shew  this 
the  more  distinctly,  in  the  Portland,  he  says,  I  know  of  no 
case,  nor  of  any  principle  that  could  support  such  a  position 
as  this,  that  a  man,  having  a  house  of  trade  in  the  enemy's 
country,  as  well  as  in  a  neutral  country,  should  be  consider- 
ed in  his  whole  concerns  as  an  enemy  merchant,  as  well  in 
those  which  respected  solely  his  neutral  house,  as  in  those 
which  belonged  to  his  belligerent  domicil.  The  only  light 
in  which  it  could  affect  him  would  be,  as  furnishing  a  sug- 
gestion that  the  partners  in  the  house  in  one  place  were 
also  partners  in  the  other.  And  in  the  Herman,  where  a 
shipment  was  actually  made  from  an  enemy's  port,  by  or- 
der of  the  neutral  house  to  the  belligerent  house,  but  on 
account  of  the  former,  the  property  was  adjudged  to  be 
restored. 

These  cases  did,  as  he  thought,  assign  and  establish  the 
true  and  reasonable  limits  of  the  doctrine ;  and  he  had  no 
difficulty  in  maintaining  that  shipments  made  by  an  enemy 
house,  on  account  and  risk  bona  jide^  and  exclusively,  of  a 
neutral  partner  or  house  are  not  subject  to  confiscation  as 
prize  of  war.  And  the  same  principle  must  apply  in  the 
converse  case  of  a  partner  or  agent  domiciled  in  the  ene- 
my's country,  and  making  shipments  to  his  neutral  house 
•r  principal  on  the  exclusive  account  of  the  latter.(P) 

(p)  Per  Stort,  J.  lb. 


:21 


15«  iAW    OF  •HA?.    V. 


CHAPTER  V. 

Of  the  liability  to  capture  of  property,  sailing  under  thejtag 
and  pass,  or  lice?2se  of  the  enemy. 

1.  It  is  an  established  rule  with  respect  to  a  vessel,  that 
if  she  is  navigating  under  the  pass  of  a  foreign  country,  she 
is  to  be  considered  as  bearing  the  national  character  of  that 
country  undet  whose  flag  she  sails  :  she  makes  a  part  of  its 
navigation,  and  is  in  every  respect  liable  to  be  considered 
as  a  vessel  of  that    countrj'.     For  ships  have  a  peculiar 
character   impressed  upon  them   by  the  special   nature   of 
their    documents,  and    are   always    held    to    the   charac- 
ter,   with  which  they  are    so  invested,   to    the  exclusion 
of  any  claims  of  interest  that  persons  resident   in  neutral 
countries  may  actually  have;  in  them.(')     But  where  the 
cargo  was  laden  on  board  in  time  of  peace,  and  documen- 
ted as  foreign  property  in  the  same  manner  with  the  ship, 
with  the  view  of  avoiding  alien  duties,  the  sailing  under  the 
foreign  flag  and  pass  was  not  held  conclusive  as  to  the  car- 
go.    A  distinction  was  made  b  A  ween  the  ship,  which  was 
held  bound  by  the  character  imposed  upon  it  by  the  autho- 
rity of  the  government  from  which  all  the  documents  issu- 
ed, and   the  goods,  whose  character  had  no  such  depen- 
dence upon  the  authority  of  the  state.     In  time  of  war  a 
more  strict  principle  might  bo  necessary ;  but  where  the 
transaction  took  place  in  peace,  and   without  any  expecta- 

(•')  1  Robinson,  \3.     The  Vipilantia,  S  Robinson,  2.    The  Vrow  Eliza^ 
Icth,  j'j.    In  AppcnJix.    Addiiional  Notes,  2^0.  J  I. 


MARITIME    CAPTURES    AND    PRIZES.  159 

tion  of  war,  the  car?;o  shouIJ  not  be  involved  in  the  con- 
demnation of  the  vessel,  which  under  these  circumritances 
was  considered  as  incorporated  into  the  navigation  of  that 
country  whose  flag  and  pass  she  bore.C^) 

And  where  the  ship  M'as  sailing  under  a  special  pass  or 
license  of  adoption,  e;ititling  her  to  engage  in*  the  colonial 
trade  of  the  enemy,  being  in  all  other  respects  undoubtedly 
and  avowedly  a  neutral  vessel,  and  documented  i;s  such, 
she  was  restored  to  the  neutral  claimant. (*^) 

2.  Bv  the  law  of  war,  all  intercourse  between  the  sub- 
jects or  citizens  of  the  belligerent  powers  is  prohibited. 
No  commercial,  or  other  intercourse  can  therefore  be  law- 
fully carried  on  between  the  citizens  or  subjects  of  the 
hostile  states,  but  by  the  special  permission  and  license  of 
their  respective  governments,  who  are  alone  competent  to 
decide  on  all  the  considerations  of  expediency^  by  which 
such  an  exception  from  the  ordinary  consequences  of  war 
must  be  controlled.  Such  licenses  are  of  antient  invention 
and  use.  Thus  in  the  Black  Book  of  the  English  admi- 
ralty, p.  76y  we  find  a  prohibition  of  all  intercourse  with  the 
enemy,  laid  down  with  the  exception  oi  sl  speciallicensefroj/i 
the  kinp"  or  his  admiral.  And  bv  the  French  Ordinances 
of  the  5th  August,  1G76,  and  the  7th  December,  1689,  con- 
firmed by  that  of  the  18th  IMarch,  ITOo,  the  French  ships 
of  war  are  forbidden  from  detaining  any  vessel  bearing  the 
passport  of  the  king,  to  whatever  nation  the  same  may  be- 
long. As  such  intercourse  can  onJy  be  legalized  in  the  ci- 
tizens or  subjects  of  the  belligerent  stpte,  by  a  license  from 
their  own  government,  it  is  evident  that  the  use  of  a  license 
for  such  a  purpose  from  the  enemy  only  must  be  illegal^ 
and  affect  the  property  with  confiscation.  For,  as  has  been 
before  observed,  it  is  the  sovereign  power  of  the  state  that 

('')  5  Robinson,   5    In  J^'otis.  The  Vreecle  Sdholtys.     T'/'-       '.'"■' 
ler  IV.  §  8.  note  i. 

("=)  The  Clarissa,  cited  in  5  Subinson,  4. 


160  LAW   OF  CHAP.    V. 

is  alone  competent  to  decide  on  all  the  considerations  of 
expediency,  by  which  such  an  intercourse  may  be  permit- 
ted to  its  citizens  or  subjects. 

But  though  this  principle  may  be  considered  as  applica- 
ble to  a  license  protecting  a  direct  commercial  intercourse 
with  the  enemy,  yet  the  question  how  far  it  may  be  appli- 
cable to  an  indirect  intercourse,  by  a  vo}'age  to  a  neuiral 
country,  or  a  country  in  alliance  with  the  enemy,  may  be 
thought  more  doubtful. 

Viilin,  speaking  of  the  reason  for  requiring  the  name  and 
domicil  of  the  assured  in  the  policy,  as  well  as  a  specification 
of  the  goods  insured^  the  name  of  the  shifi^  and  the  place 
xvhere  the  cargo  is  to  be  laden  and  xinladen^  says,  That  the 
intention  of  the  ordinance  in  requiring  this,  is,  to  di'  cover 
in  time  of  war,  if  notwithstanding  the  interdiction  of  com- 
merce included  in  every  declaration  of  war,  the  subjects  of 
the  king  are  not  engaged  in  trade  with  the  enemies  of  the 
state,  or  with  friends  or  allies,  bij  whose  interposition^  mu- 
■nitions  of  war^  provisions,  and  other  prohibited  articles^ 
viay  be  handed  over  to  the  eneiny  :  for  a  trade  in  these  ar- 
ticles, being  forbidden  as  prejudicial  to  the  state,  they 
would  be  su!)ject  to  confiscation  and  to  be  declared  good 
prize,  being  found  either  on  board  French  vessels,  or  those 
of  friends  and  allies.  Sur  VOrdonnance^  L.  3.  tit.  6.  des 
Assurances^  art.  3.('')  If  it  be  said  that  the  commentator 
is  here  speaking  only  of  contraband  trade,  it  is  answered, 
that  by  this  ordinance  the  munitions  of  war  are  alone  con- 
eidered  as  contraband,  whilst  provisions  are  deemed  inno- 

C)  I, 'intention  ile  I'ordonnancc,  en  exig-eunt  que  la  police  contiennc, 
&,c.  est  encore  dc  coniioitre  en  Icinps  dc  guerre,  si  inalgrc  I'iuterdiction 
de  commerce  qu'cmportc  tonjoiirs  toatc  declaration  de  guerre,  les  sujets 
du  roi  ne  font  point  commerce  avec  Ics  enncmis  de  I'etat,  ou  avcc  des 
amis  ou  allies,  par  V  inter  position  dcsquels  on  ferait  passer  aux  eiinemis  ties 
munitions  de  ffucrre  et  de  bouche,  mi  d'avtrcs  effcts  prvhib^s  ■  car  tout  cela 
itant  d6fcHd.\i,'  comme  pr<;judiciable  a  I'etal,  serait  sujet  a  confiscation, 
el  i  €tre  d<Jclar£  de  bonne  prise,  ^tant  trouvc,  soit  sur  les  savires  dc  la 
nation,  soit  sur  ccux  dca  anus  ct  allied. 


MARITIME    CAl'TUKES    AND    PRIZES.  161 

eent  articles.  Besides,  Valin  immediately  proceeds  to  ob- 
serve that,  This  interdiction  of  commerce  with  the  enemies 
of  the  state,  comprehends  also  of  right  a  prohibition  against 
insuring  their  goods,  whether  laden  on  board  their  oM'n 
vessels,  or  the  vessels  of  allies  and  neutrals.  For  to  in- 
sure the  goods  of  the  enemv,  or  to  send  them  to  him  direct- 
ly or  indirectly,  is  at  bottom  the  same  thing.  It  is  true 
that  the  law  11,  Ffi  de  Publicanis,  which  is  cited  on  this 
subject,  speaks  only  of  munitions  of  war  and  provisions, 
which  are  prohibited  from  being  sent  to  the  enemy  on  ac- 
count of  the  nature  of  the  things  themselves  ;  but  the  Or- 
dinance of  1543,  art.  42.  and  that  of  1584,  art.  69.  which 
is  likewise  cited,  obsohitely  proscribes  all  commerce  direct 
or  indirect  with  the  enemi/,  as  well  as  the  transportation  of 
the  munitions  of  war  on  board  the  vessels  of  allies  or  neu- 
trals to  the  enemy.(*) 

If  it  be  said  that  the  principles  relative  to  trading  with, 
the  enemy  are  not  applicable  to  the  case  of  a  license  grant- 
ed by  the  enemy  to  protect  a  voyage  to  a  neutral  port,  un- 
less it  appears  that  the  goods  were  to  be  sent  on  to  the  en- 
emy ;  it  may  in  return  be  asked  if  all  intercourse  with  the 
enemy  be  prohibited  by  the  law  of  war,  how  can  the  pur- 
chase or  acceptance  of  a  license  from  that  enemy  be  lawful? 
If  the  license  be  an  article  of  sale,  in  what  respect  can  it  be 
distinguished  from  a  sale  of  merchandize  ?    If  purchased 

(e)  Cette  interdiction  de  commerce  avec  les  ennemis,  comprend  aOssi 
de  plein  droit  la  defense  d'assurer  les  effets  qui  leur  appartiennent,  qu'ils 
soit  charges,  sur  leurs  propres  vaisseaux,  ou  sur  des  navires  amis,  all  es 
ou  neutres.  Car  assurer  les  cfFets  de  Tennemi,  ou  les  hit  envoyer  direcie- 
ment  ou  incUrcctement,  c'est  au  fond  la  mcme  chose.  11- est  vrai  que  la 
lol  llj  Ff.  de  Publicanis,  que  I'on  cite  ^  ce  siijet,  ne  parle  que  des  muni- 
tions  de  guerre  et  de  bouche,  qu'il  est  defendu  de  nature  de  chose  de 
faire  passer  ^  I'ennemi ;  mais  I'ordonnance  de  1543,  art.  42,  et  celle  de 
1584,  art.  69,  que  Ton  cite  aussi,  proscrixent  absoUiment  tout  commerce  di- 
rect ou  indirect  avec  les  ennemis,  aussi  bien  que  le  transport  que  les  na- 
vires amis  ou  neutres  pourraient  faire  des  miuutioas  de  guerre  aux  ©a- 
romis. 


■to^ 


162  LAW   OF  CHAP.  V. 

directly  from  the  enemy  government,  would  it  not  be  a  tra- 
ding with  the  enemy  ?  If  purchased  indirectly  can  it  change 
the  nature  of  the  transaction  ?  Nor  can  it  be  said,  that  if 
purchased  of  a  neutral,  the  trade  in  licenses  is  no  more  il- 
legcil  than  the  purchase  of  goods  of  enemy  fabric  bona  fide 
conveyed  to  neutrals.  For  the  purchase  of  goods  of  ene- 
my manufacture,  and  avowedly  belonging  to  an  enemy  is 
not  legalized  by  the  mere  fact  of  the  sale  being  made  in  a 
neutral  port.  The  goods  must  have  been  incorporated  into 
the  general  stock  of  neutral  trade,  before  a  subject  of  the 
belligerent  state  can  lawfully  become  the  purchaser.  If 
such  licenses  be  a  legitimate  article  of  sale,  will  they  not 
enable  the  enemy  government  to  raise  a  revenue  from  the 
citizens  of  the  belligerent  state,  and  thereby  add  to  the  en- 
emy's resources  of  war  ?  Admit,  however,  that  they  are  not 
so  sold,  but  that  they  are  a  measure  of  policy  adopted  by 
the  enemy  government,  t .:  favour  its  own  interests,  and  en- 
sure a  supply  of  necessary  articles,  either  in  or  through 
neutral  countries ;  can  it  be  asserted  that  a  citizen  of  the 
belligerent  state  is  wholly  blameless,  who  enters  into  sti- 
pulations and  engagements  to  effect  these  purposes  of  the 
enemy  ?  Is  not  the  enemy  thereby  relieved  from  the  pres- 
sure of  the  war,  and  enabled  to  wage  it  more  successfully 
against  other  branches  of  the  same  commerce,  not  protect- 
ed by  this  indulgence.  The  case  of  a  personal  license  is 
very  distinguishable  from  a  general  order  of  the  enemy  go- 
vernment, authorising  and  protecting  all  trade  to  a  neutral 
country.  The  first  presupposes  a  pci'sonal  communication 
with  the  enemy,  and  an  avowed  intention  of  furthering  his 
o'jjects  to  the  exclusion  of  the  general  trade  by  other  mer- 
chants to  the  same  country.  It  has  a  direct  tendency  to 
prevent  such  general  trade,  and  relieves  the  belligerent 
from  the  necessity  of  resorting  to  a  general  order  of  pro- 
tection. It  contaminates  the  commercial  entcrprizes  of  the 
favoured  individual  with  purposes  not  reconcileable  with 


MARITIME    CAPTURES    AND    PRIZES.  ioo 

ihe  general  policy  of  his  country  ;  exposes  him  to  extraor- 
dinary temptations  to   succour  the  enemy  by  intelligence, 
and  separates  him  from  the  general  character  of  his  coun- 
try, by  clothing  him  with  all  the  effective  interests  of  a  neu- 
tral.   These  are  some  of  the  leading  principles  upon  which 
a  trade  with  the  enemy  has   been  adjudged  illegal  by  the 
law  of  nations.     On  the  other  hand,  a  general  order  opens 
the  whole  trade  of  the  neutral  country  to  every  merchant. 
It  presupposes  no  incorporation  in  enemy  interests.    It  en- 
ables the  whole  mercantile  enterprize  of  the  country  to  en- 
gage upon   equal  terms   in  the  traffic,  and  it  separates  no 
individual  from  the  general  national  character.     It  relaxes 
the  rigour  of  war,  not  only  in  that  particular  trade,  but  col- 
laterally opens  a  path  to  other  commerce.    There  is  all  the 
difference  between  the  cases  that  there  is  between  an  active 
personal  co-operation  in  the  measures  of  the  enemy,  and 
the  merely  accidental  aid  afforded  by  the  pursuit  of  a  fair 
and  legitimate  commerce.    In  the  purchase  or  gratuity  of  a 
license   for  trade,  there  is  an  implied  agreement  that  the 
party  shall  not  employ  it  to  the  injury  of  the  grantor — that 
he  shall  conduct  himself  in  a  perfectly  neutral  manner,  and 
avoid  every  hostile  conduct.     Can  a  citizen  of  the  bellige- 
rent state  be  permitted  in  this  manner  to  carve  out  for  him- 
self a  neutrality  on  the  ocean  when  his  country  is  at  war  ? 
Can  he  justify  himself  in  refusing   to  aid  his  countrymen 
who  have  fallen  into  the  hands  of  the  enemy  on  the  ocean, 
or  decline  their  rescue  ?  Can  he  withdraw  his  personal  ser- 
vices when  the  necessities  of  the  nation  require  them  ?  Can 
an  engagement  be  legal  which  imposes  upon  him  the  temp- 
tation or  necessity  of  deeming  his  personal  interest  at  va- 
riance with  the  legitimate  objects  of  the  government  ?  The 
principles  of  international  law,  which  formerly  considered 
the  lives  and  properties  of  all  enemies  as  liable  to  the  arbi- 
trary disposal  cf  their  adversary,  cannot  be  so  far  relaxed, 
that  a  part  of  the  people  may  claim  to  be  at  peace,  while 
the  residue  are  involved  in  the  desolations  of  n'ar.     There 


104  hXSY    OF  CHAP    V. 

are  many  acts  which  inflict  upon  neutrals  the  penalty  of 
confiscaiion,  from  the  subserviency  which  they  are  suppo- 
sed to  indicate  to  enemy  interests, — the  carrying  of  enemy 
despatches, — the  transportation  of  military  persons.  T*ie 
ground  of  these  decisions  is  the  voluntury  interposition  of 
the  party  to  further  the  views  and  interests  of  one  belliger- 
ent power  at  the  expense  of  the  other.  If  then  the  proper- 
ty of  a  neutral  is  condemnable,  for  lending  himself  to  the 
views  and  interests  of  the  enemy  in  those  cases,  a  fortiori 
is  that  of  a  citizen  or  subject  liable  to  condemnation  for 
thus  lending  himself  in  the  present  case. 

By  the  French  ordinance  of  August,  1681,  it  is  provid- 
ed ihat  every  vessel  fighting  under  any  other  flag  than  that 
of  the  state  whose  commission  she  bears,  or  having  com- 
missions from  two  different  princes  or  states,  shall  be  good 
prize ;  and  if  armed  for  war,  the  commander  and  officers 
shall  be  punished  as  pirates.  Liv.  3.  tit.  9.  Des  Prises, 
Art.  5.  And  Valin,  in  his  Traite  des  Prises^  53y  says, 
that  in  respect  to  the  vessel  on  board  of  which  are  found 
commissions  from  two  different  princes  or  states,  it  is  also 
jiist  that  they  should  be  declared  good  prize,  either  be- 
cause they  could  not  have  accepted  those  commissions  un- 
less for  fraudulent  and  deceptive  purposes,  in  case  they 
■were  both  from  friendly  or  neutral  princes  :  or  because 
they  could  not  use  the  flag  of  the  one  in  consequence  of 
bearing  his  commission,  without  injuring  the  other.  Be- 
sides this  applies  to  French  subjects^  as  well  as  to  foreig-n- 
ers.{^) 

In  what  consists  tlie  substantial  difl'erence,  between  navi- 
gating under  the  commission  of  our   own  and  also  of  an- 

(0  A  rcparcl  dii  vaisseau,  on  se  tronveront  des  commissions  de  deus 
diflTercns  princes  on  etats,  il  est  egalcment  juste  qu'il  soit  dcclard  de 
bonne  prise,  soit  parce  qii'il  ne  pent  avoir  piis  cos  commissions  que  dans 
un  esprit  de  fraude  et  de  suiprise,  f\ircnT  ellcs  toutes  deux  de  princes 
amis  ou  ncutrcs  :  soit  parcequ'il  no  peutarborer  Ic  pavilion  de  I'un  en 
consequence  de  sa  commission,  sans  faire  injure  ii  I'autre.  Ccci  an  reste 
rcgarde  lea  Francais  commc  la  etran^tirn. 


MARITIME    CAPTURES    AND    PRIZES.  \63 

Other  sovereign,  and  navigating  under  the  protection  of 
the  passport  of  such  sovereign  which  confer  or  compel,  sc 
neutral  character? 

Valin  also  declares  in  his  Commentary  upon  the  Ordl- 
hance,  if  on  board  a,  French  vessel  there  be  found  a  fo- 
reign commission  tdgether  with  that  of  France,  the  vessel 
will  be  prize,  although  she  may  have  used  no  other  flag 
than  the  French.  %w.  3.  tit.  9.  art.  4.  p.  241.  (s)  It  is 
true  that  he  just  before  observes  that  this  circumstance  of 
two  clearances  or  passports,  or  two  bills  of  lading,  of  which 
one  is  French,  and  the  other  of  an  enemy  country,  is  not 
alone  sufficient  to  pronounce  the  eJiemy  vessel  good  prize, 
and  this  must  depend  upon  the  circumstances  which  may 
serve  to  indicate  her  real  destination. C")  But  it  is  evident 
that  Valin  is  here  referring  to  the  case  of  an  enetni/  ship, 
having  a  passport  of  trade  from  the  sovereign  of  France, 
It  may  be  inferred  from  his  language,  that  a  French  vessel 
sailing  under  the  passport,  conge,  or  license  of  its  enemy, 
without  the  authority  of  its  own  sovereign,  would  have 
been  lawful  prize. (') 

3.  Where  the  vessel  in  question,  the  property  of  a  citi- 
zen of  the  belligerent  state,  laden  with  a  cargo  of  flour  and 
bread,  and  hound  from  Baltimore  to  Lisbon,  was  captured, 
on  the  voyage  thither,  and  brought  in  for  adjudication,  the 
ship  was  claimed  by  the  owner,  and  the  cargo  by  him  and 
other  citizens.     Among  the  documentary  evidence  was  a. 

(?)  Si  sur  un  navire  Fran5als  il  y  a  une  commission  d'un  prince  etran- 
ger  avcc  celle  de  France,  11  sera  de  bonne  prise,  quoiqu'il  n'ait  aborfi 
que  le  pavilion  Frani^ais. 

C")  Que  la  circonstance  de  deux  conges  ou  passports,  ou  de  deux  con- 
noisements,  dont  I'un  est  de  France  et  I'autre  d'un  pays  ennemi,  ne  suffit 
pas  seul  pour  faire  declarer  le  navire  eimemi  de  bonne  prise,  et  que  cela 
dolt  dependre  des  circonstances  capables  de  faire  d^coavrir  sa  veritable 
destination. 

(i)  Per  Stort  J.  The  Julia.  Supreme  Court  of  the  U.  S.  February 
t.  1814.  jM.  S. 

22 


1^6  LAW    OF  CHAP.  V. 

letter  jFrom  the  enemy's  Admiral  Sawyer,  of  the  5th  Au- 
gust, 1812,  directed  to  Andrew  Allen,  jun.  (as  British  con- 
sul at  Boston)  stating,  that  being  aware  of  the  importance 
of  ensuring  a  constant  supply  of  flour  and  other  dry  provi- 
sions to  Spain  and  Portugal,  and  to  the  West  Indies,  he 
should  give  directions  to  the  officers  of  his  Britannic  ma- 
jesty's squadron  under  his  command,  not  to  molest  Ame- 
rican vessels  unarmed  and  so  laden,  shona  fide  bound  to 
Portuguese  and  Spanish  ports,  whose  papers  should  be  ac- 
companied by  a  certified  copy  of  that  letter  under  Allen's 
consular  seal.  Also  a  letter  from  Allen,  addressed  to  all 
the  officers  of  his  said  majesty's  ships  of  war  or  privateers 
belonging  to  his  subjects,  reciting  that  it  is  of  vital  impor- 
tance to  continue  a  full  and  regular  supply  of  flour  and  other 
dry  provisions  to  the  ports  of  Spain  and  Portugal,  or  their 
colonies,  and  that  in  consequence  thereof^  it  had  been 
thought  expedient  by  his  majesty's  government,  that  zvtxy 
degree  of  protection  and  encouragement  should  be  given 
to  American  vessels,  so  laden  and  destined,  with  a  copy  of 
his  letter  certified  under  his  consular  seal,  which  docu- 
ments were  intended  as  a  perfect  safeguard  and  protection 
to  such  vessel  in  the  prosecution  of  her  voyage  ;  and  that 
in  compliance  with  such  instructions,  he  had  g^-anted  to  the 
vessel  in  question  a  copy  of  the  said  Admiral  Sawyer's  let- 
ter, certified  under  his  consular  seal,  requesting  all  officers 
of  his  majesty's  ships  of  war,  and  of  private  armed  vessels 
belonging  to  his  subjects,  not  to  offer  any  molestation  to  the 
said  vessel,  but,  on  the  contrary,  to  grant  her  all  proper  as- 
sistance and  protection  in  her  passage  to  Lisbon,  and  on 
her  return  from  thence  to  her  port  of  departure,  laden  with 
salt  or  in  ballast  only.  The  purchase  of  tlie  license,  and 
the  price  paid,  were  proved;  also  that  the  license  was  in 
blank,  for  inserting  the  names  of  any  vessel  and  master, 
and  that  these  licenses  formed  an  article  of  traffic  in  the 
market  as  much  as  any  sjyecics  of  merchandize. 


MARITIME    CAPTURES    AND    PRIZES.  10'? 

It  was  contended  that  the  fiicts  in  this  case  diffefed  so 
materially  from  those  which  appeared  in  the  case  above 
cited,  that  the  principles  of  law  which  ruled  that  case,  were 
inapplicable  to  this. 

There  certainly  are  some  differences  in  the  two  cases. 
The  important  circumstance  which  seems  to  have  influ- 
enced the  decision  in  the  former  case  was,  that  the  license 
•pntemplated  the  ensuring  a  constant  supply  of  dry  provi- 
sions to  the  allied  armies  in  Spain  and  Portugal,  and  conse- 
quently an  unlawful  coimexion  with  the  enemy  to  supply 
his  armies,  and  a  subserviency  to  the  interests  of  that 
enemy.  In  the  latter  case  no  such  viev/s  were  expressed 
in  the  license  of  Sawyer;  yet  the  court  must  liave  been 
wilfully  blind  not  to  see  that  this  was,  in  reality,  the  object 
of  Sawyer  and  of  Allen,  and  that  it  must  have  been  so  un- 
derstood by  those  who  sailed  under  it.  In  both  cases  the 
allied  armies  were  to  be  supplied,  not  by  sales  to  be  made 
to  their  agents,  (for  this  is  not  required  by  either)  but  by 
carrying  supplies  to  the  Peninsula,  which  would  indirectlv 
come  to  their  use.  The  license,  as  well  as  the  letter  of 
Allen  accompanying  it,  pointed  out  the  great  importance  of 
such  supplies  being  sent  to  Spain  and  Portugal ;  and  the 
latter  added,  that  in  furtherance  of  thefie  views  of  his  Ma- 
Jesty^s  government^  he  had  been  directed,  by  Admiral  Saw- 
5fer,  to  furnish  a  copy  of  his  letter  to  vessels  so  laden  and 
destined.  Can  it  be  said  that  a  citizen,  sailing  under  the 
protection  of  papers  professing  such  to  be  the  views  of  the 
enemy's  government,  docs  not  act  in  such  a  manner  as  to 
subserve  the  views  and  interest  of  the  enemy  ?  Upon  tlie 
whole,  the  court  was  of  opinion,  that  there  was  no  substan- 
tial difference  between  this  case  and  the  former  one  ;  and 
that  this  was  fully  within  the  principle  laid  down  by  the 
eourt  in  deciding  that. 

It  was  stated  in  behalf  oX  the  claimants'i>f  the  cargo,  that 
they  ought  not  to  be  bound  by  the  illegal  a'  ov/ner 


I^S  LAW  ^i  CHAP.    V, 

of  the  vessel.  It  is  a  sufficient  answer  to  this  argument  to 
observe,  that,  in  this  case,  it  must  be  presumed  that  the  li- 
cense was  known  to  the  owners  of  the  cargo,  if  it  was  not 
the  joint  property  of  all.  It  is  inconceivable  that  the 
owner  of  the  vessel  should  expend  about  sixteen  hundred 
dollars  for  the  protection  of  a  cargo  in  which  it  appeared 
that  he  was  not  largely  concerned,  without  communicating 
such  an  advantage  to  his  shippers,  and  even  requiring  some 
reimbursement,  either  by  demanding  higher  freight,  or 
compensation  in  some  other  way.  But  what  is  conclusive 
on  this  point  was,  that  an  order  for  further  proof  in  rela- 
tion to  this  license  was  made,. and  yet  no  affidavit  or  proof 
v/as  offered  by  any  of  the  owners,  denying  knowledge  of 
these  documents  being  on  board. f'^) 

4.  The  same  principle  was  applied  to  the  following  case. 
The  vessel  and  cargo  in  question  were  captured  during  the 
late  war.  From  the  documentary  evidence  and  prepara- 
tory examinations  it  appeared,  that  the  vessel  sailed  from 
Norfolk  with  a  cargo  of  dry  provisions,  was  consigned  to 
the  supercargo,  obtained  a  clearance  for  St.  Bartholomews, 
and  was  ostensibly  bound  thither.  At  the  time  of  capture 
she  was  to  the  leeward  of  that  island,  and  enemy  licenses 
■were  found  on  board  of  a  description  similar  to  those  in 
the  last  mentioned  case.  The  court  found  it  difficult  to 
discriminate  between  this  case  and  the  preceding  ones. — 
All  had  licenses  of  the, same  character,  and  substantially 
for  the  same  purpose^  except  only  that  the  object  of  the 
first  vessel  was  to  supply  the  allied  armies  in  Portugal, 
and  the  original  intention  of  the  vessel  in  this  case  was  to 
go  to  the  enemy's  West  India  islands.  It  is  by  no  means 
clear  that  this  intention  was  ever  changed ;  but  admitting 
that,  from  an  apprehension  of  seizure  on  her  return  to  the 

(»<)  Per  WA.smroTON,  J.    Tlie  Iliram.    Supreme  Court  of  the  United 
3tate8,  FclJiruary  Tejjm,  1814.    M.  S. 


MARITIME    CAPTURES    AXD    PRIZEl=;.  169 

^belligerent  state,  after  touching  at  an  enemy's  port,  she  in 
fact  sailed  on  a  voyage  to  St.  Bartholomews,  a  neutral 
port,  this  could  make  no  substantial  difference  in  her  fa- 
vour. The  object  in  going  there  was  tqually  criminal,  and 
subserved  the  views  of  the  enemy  nearly,  if  not  quite, 
as  well  a§  if  her  cargo  had  been  landed  in  an  enemiy's  inland. 
Of  the  real  intent  of  the  voyage  there  could  remain  no 
doubt ;  for  it  abundantly  appeared  from  the  license  itself, 
that  the  professed  object  of  Admiral  Sawyer,  at  least  in 
granting  it,  was  to  obtain  a  supply  of  provisions  for  the 
enemy  ;  and  the  court  would  not  easily  lend  its  ear  to  a 
suggestion  that,  notwithstanding  the  vessel  was  found  with. 
g,n  enemy's  protection  on  board  of  so  obnoxious  a  charac- 
ter, yet  her  owners  intended  to  deceive  the  enemy,  either 
hy  goi^g  to  a  port  not  mentioned  in  it,  or  by  disposing  of 
her  cargo  in  a  way  that  would  not  have  promoted  his 
views.  Without  meaning  to  say  that  such  conduct  might, 
under  no  circumstances  whatever,  be  explained,  the  court 
thought  that  there  was  no  proof  in  this  case  to  shew  that  it 
was  not  the  intention  of  the  claimants  to  carry  into  effect 
the  original  understanding  between  them  and  Mr.  Alien. 
For  though  a  destination  to  the  neutral  port  be  concedid, 
;t  is  evident  that  Mr.  Allen,  who  acted  as  British  Consul, 
supposed  the  views  of  Admiral  Sawyer  might  be  answered 
as  well  in  that  way  as  any  other ;  nor  is  it  clear,  as  was 
said  at  the  bar,  that  the  documents  received  from  Mr.  Al- 
len, and  which  varied  more  in  form  than  in  substance  firm 
the  Admiral's  passport,  would  not  have  protected  the  ves- 
sel from  enemy  capture  on  a  voyage  to  the  neutral  port. — 
The  protection  of  the  British  Admiral  extended  to  unarm- 
ed American  vessels,  laden  with  dry  provisions,  and  bona 
Jide  bound  to  British,  Portuguese,  or  Spanish  ports.  The 
only  modification  or  extension  introduced  by  Mr.  Allen, 
.was  a  permission  to  go  to  a  Swedish  island,  eqiially  neutral 
with  Spain  and  Portugal,  in  the  vicinity  of  the  British  pos- 


170  LAW    0£  CHAP.  r. 

sessions.  Whether  all  or  any  of  these  papers  would  have 
saved  the  vessel  from  confiscation  in  an  enemy's  court  of 
prize,  the  court  was  not  bound  to  assert;  it  is  sufficient,  if 
that  was  the  reasonable  expectation  of  the  parties,  as  it  cer- 
tainly was ;  and  it  is  more  than  probable  that  such  expec- 
tation would  have  been  realized,  considering  the  very  im- 
portant advantages  the  enemy  was  to  derive  from  them. — 
In  case  of  capture,  there  can  be  no  doubt  that  the  claimants 
would  have  interposed  those  very  papers,  which  were  sup- 
posed to  have  emanated  from  unauthorized  agents,  as  a 
shield  against  forfeiture ;  and  probably  with  success.  Why 
then  should  they  be  permitted  to  allege,  in  a  court  of  the 
belligerent  state,  that  these  documents  ?¥Otild  have  been  in- 
effectual for  that  purpose  ? 

It  was  also  insisted,  that  in  this  case  no  illicit  Intercourse 
had  taken  place  ;  that  the  whole  offence,  if  any,  consisted 
in  Intention;  and  that,  if  a  capture  had  not  intervened, 
there  was  still  a  locus penitenticc^  and  no  one  could  say  that 
even  the  project  of  going  to  the  neutral  port  might  not 
have  been  abandoned. 

In  this  reasoning  the  court  did  not  concur,  but  was  of 
opinion,  that  the  moment  the  vessel  started  on  the  voyage 
for  the  neutral  port  with  the  license  in  question,  and  a  cargo 
of  provisions,  she  rendered  herself  liable  to  capture  by  the 
public  or  private  armed  vessels  of  the  belligerent  state,  who 
were  not  bound  to  lay  by,  and  see  how  she  would  conduct 
herself  during  the  voyage ;  the  consequence  of  which 
would  be,  that  no  right  of  capture  would  exist  luitil  all 
chance  of  making  it  was  at  an  end.(') 

5.  Where  the  vessel  in  question  had  been  exempted  from 
condemnation  on  the  return  voyage  by  the  enemy  on  account 
of  her  producing  a  certificate  of  having  landed  her  outward 

(I)  Pcr,Li*XK';sTov,  J,  The  Aurora.  Supreme  Court  of  the  Iniicc^. 
States,  February  Term,  1814.     ]M.  S. 


MAIITTIME    CAPTURES    AND    PRIZES.  17  i 

cargo  In  Portugal,  the  captors  contended  that  the  vessel  and 
return  cargo  were  subject  to  condemnation,  because  the  voy- 
age must  have  been  performed  under  the  protection  of  a  Bri- 
tish license,  and  upon  any  other^supposition  it  was  impossible 
to  account  for  the  exemption  from  British  condemnation. 
But  the  learned  judge  by  whom  the  case  was  determined, 
did  not  think  that  under  the  circumstances  so  pregnant  n 
suspicion  would  arise  of  subserviency  to  enemy  interests  as 
the  captors  supposed.  All  knew  that  soon  after  the  com - 
mdlicement  of  the  war,  with  a  view  to  facilitate  the  supply 
of  the  British  armies  in  Portugal,  licenses  v/ere  granted  by 
the  -British  government  to  protect  from  capture,  vessels 
with  cargoes  destined  to  those  countries.  It  had  been  de- 
cided in  the  case  of  the  Julia,  that  the  acceptance  and  use 
of  such  license  on  the  part  of  an  American  citizen,  consti- 
tuted such  an  avowed  adoption  of  the  polic}-  of  the  enemy 
as  stamped  the  property  engaged  in  the  traffic  with  all  the 
penal  consequences  of  hostile  character. (*")  He  looked 
back  upon  that  decision  without  regret,  and  after  much 
subsequent  reflection  could  not  doubt  that  it  had  a  perfect 
foundation  in  the  principles  of  public  law.  To  the  many 
authorities  there  stated,  he  might  have  added  the  pointed 
language  of  the  court  in  the  Jonge  Pietre.  That  without 
the  license  of  the  government,  no  commitmcation  direct,  or 
indirect  can  be  carried  on  with  the  enemy ;(")  and  the  rule 
strongly  Illustrative  of  the  principle,  which  is  acknowledged 
as  early  as  the  year  books.  Per  Brian,  J.  19.  Edv.  4.  6  ;(") 
and  has  been  sanctioned  down  to  the  present  times, ('')  that 
every  contract  and  engagement  made  with  the  enemy 
pending  war,  is  utterly  void.     But  to  return — It  uas  well 

('")   Supra,  §2: 

(")  4  Rofnnson,  79. 

(o)  CUcil  ill  HuoL  Dij:  L.  1.  c.  G.  §  7t. 

'"1  1,1   rczetj  June.  Tl. 


172  LAW    OP  CHAP'.  V.' 

known  that  lon;^  before  the  decision  of  the  above  cas^, 
doubts  had  existed  as  t©  the  legality  of  such  licenses, 
doubts  which  must  soon  have  become  knov/n  to  the  ene- 
my;  and  as  the  policy  of  maintaining  the  supply  continued 
the  same,  it  was  not  extraordin|iry  that  the  British  gpvern- 
ment  should  give  every  encouragement  to  sach  shipments 
as  its  necessities  required,  by  prohibiting  its  cruizers  frorh, 
the  Capture  of  vessels  engaged  in  this  trade.  Under  such 
circumstances,  it  was  not  incredible  that  a  mere  certificate 
of  the  landing  of  the  outward  cargo  at  Lisbon,  signed  by  a 
person  in  whom  it  had  confidence,  a  person  (as  the  captors 
alleged)  acting  as  a  British  commissary,  should  exempt  the 
vessel  and  cargo  froni  capture  on  the  return  voyage.  He 
did  not  assert  that  any  such  general  exemption  had  been 
authorized  by  any  orders  of  the  British  government,  biit 
when  the  master  and  crew  directly  and  positively  denied 
any  British  license  to  have  been  used  during  the  voyage,  he 
could  not  feel  himself  at  liberty  to  set  aside  their  testimotiy 
upon  mere  suspicions,  arising  from  facts  which  admitted  of 
a  fair  interpretation  in  their  favour.  The  evidence  of  ene- 
my connexion  was  drawn  exclusively  from  the  certificate 
of  the  landing  of  the  cargo,  which  it  was  said  operated  vir- 
tually as  a  license.  For  himself  he  could  not  see  any  very 
noxious  quality  in  that  certificate.  Suppose  it  was  known 
at  Lisbon  (and  the  fact  must  undoubtedly  have  been  be- 
lieved, or  the  present  cargo  would  not  have  been  shipped) 
that  the  British  government  would  not  molest  American 
vessels  returning  with  cargoes,  if  they  could  prove  that 
they  had  landed  outward  cargoes  of  provisions  at  Lisbon, 
"would  there  be  any  thing  illegal  in  taking  such  certificate 
from  a  respectable  merchant  sanctioned  by  the  American 
consul  ?  lit  did  not  perceive  the  illegality.  If  the  certifi- 
cate were  false  in  point  of  statement,  he  supposed  that  such 
an  attempt  tcjjdeceive  tiie  enemy's  cruizers  would  not  have 
been  d:cmed"  unjastifinble.     Why  should  its  truth  render 


MARITIME    CAPTURES    AND    PHIZES.  17-^ 

it  more  so  ?  The  argument  seemed  to  suppose  that  if  the 
British  government  had  by  a  general  order  exempted  all 
American  vessels  from  capture,  bound  to  Lisbon  with  pro- 
visions, that  the  mere  sailing  on  such  a  voyage  would  con- 
stitute an  illegal  subserviency  to  the  interest  of  the  ene- 
my ;  and  could  not  be  distinguished  from  the  case  of  sail- 
ing with  a  special  British  license.  The  same  argument 
was  used  in  the  Julia  for  the  opposite  purpose,  viz.  to  shew 
that  both  proceedings  were  legal  and  innocent ;  and  the 
answer  given  in  that  case,  he  was  still  disposed  to  consider 
as  sufficient  to  establish  the  fallacy  of  the  reasoning.  The 
trade  to  Lisbon  on  neutral  or  domestic  account,  w^s  a 
commerce  authorized  by  the  laws  of  the  United  States, 
and  growing  out  of  that  amity  which  subsisted  with  the 
Portuguese  government.  Provisions  might  be  lawfully 
exported  and  sold  there,  and  if  thereby  the  British  inte- 
rests were  aided,  or  the  British  policy  enforced,  it  was  a 
mere  incidental  effect  which  no  more  infected  the  trans- 
action with  hostility,  than  the  trade  of  a  Portuguese  mer- 
chant with  the  United  States  would  constitute  a  violation 
of  his  neutrality,  merely  by  adding  to  the  revenue  of  this 
country.  If  the  mere  chance  that  a  trade  may  assist  the 
resources  or  aid  the  enterprizes  of  an  enemy  through 
indirect  channels,  were  a  sufficient  proof  of  hostile  attach- 
ment and  interest,  he  knew  not  how  in  the  present  state 
of  the  world,  any  neutral  commerce  could  exist.  While 
therefore  the  trade  was  by  the  laws  left  open  to  citizens 
of  the  United  States,  it  could  not  acquire  an  illegal  cha- 
racter unless  carried  on  expressly  for  British  account,  or 
shipped  under  British  contracts,  or  destined  for  British 
use — or  voluntarily  incorporated  into  British  service  by 
licenses  which  give  the  immunit}'  of  Briiish  navigation. 
In  other  words,  v/here  the  trade  is  carried  on  bona  fide 
on  neutral  or  domestic  account  for  general  sale  in  a  neu- 
tral market,  the  voyage  is  not'  contaminated,  although 
-23 


174  LAW    OF  CHAP.   V 

the  enemy  obtain  his  supplies  from  the  general  stock  o{ 
that  market.(*') 


(i)  Per  Stoht,  J.  Tlie  Liverpool  Packet.  Circuit  Court  of  tlie  T" 
S.  for  Massachusetts  district,  1813  M.  S.  Vide  supra,  Ch»pter  IV.  f.  ^ 
n.Dtc  u  '''"■ 


I 


"m;\ritime  captures  and  prizes.  175 


CHAPTER  VI. 

Of  neutral  property  considered  as  a  legal  object  of 
capture. 

1.  Not  only  is  enemy's  property,  and  that  of  persons 
resident  or  having  possessions  in  the  enemy's  country,  and 
property  sailing  under  the  flag  and  pass  or  license  of  the 
enemy,  liable  to  capture  ;  but  neutral  property  is  also,  un- 
der certain  circumstances,  a  legal  object  of  capture  and  con- 
demnation as  prize  of  war. 

3.  It  is  the  duty  of  neutrals  to  observe  an  exact  impar- 
tiality between  the  belligerent  parties,  and  to  afford  no  as- 
sistance to  either,  to  the  prejudice  of  the  other.  Pacent 
utr'ique  pact  quod  viedios  deceat  amicos^  optent  bello  se  non 
2nterpQnant.(f)  Their  commerce  with  the  belligerent  pow- 
ers is  generally  free  and  unrestrained  by  the  war.  But 
to  this  general  freedom  there  are  several  exceptions. 
Among  these  is  included  the  trade  with  the  enemy ^Q'')  in 
certain  articles  denominated  contraband  of  war.  The  al* 
most  unanimous  authority  of  elementary  writers,  of  the 
ordinances  of  belligerent  powers,  and  of  treaties,  agrees  to 
enumerate  among  these,  all  warlike  instruments,  or  mate- 
rials by  their  own  nature  fit  to  be  used  in  war.  But  beyond 

(•^  Liv.  L.  35.  c.  48. 

C')  Dunqne  la  proibizione  introdotta  dal  diritto  convenzionale  dell'  Europa 
sul  commercio  dei  generi  detti  di  contrabbaiido  di  guen^a  non  pud  cadere,  che 
sul  pveciso  trasporto  di  essi  ai  paesi  nemici,  non  mai  perd  sulla  loro  vendita 
iinparziale  nel  territorio,  o  porti  dei  pacifici  e  neutrali ;  giaccki  ivi,  ne  soJio^ 
7ie  poasono  chiarmarsi  fmrci  di  contrabbando-     Azuni,  Par't  2>  c.  2"  §  3- 


1T&  LAW    OF  GHAP.    tl. 

this  enumeration,  there  is  some  difficulty  in  reconciling  the 
different  authorities,  which  are  extremely  discordant,  and 
at  variance  with  reason  and  justice.  Grotius,  in  consider- 
ing this  subject,  makes  a  distinction  between  those  things 
that  are  useful  for  the  purposes  of  war,  those  which  are  not 
so,  and  those  which  are  susceptible  of  indiscriminate  use 
in  war  and  in  peace.  The  first  he  agrees  with  all  other 
%vriters  in  prohibiting  neutrals  from  carrying  to  the  enemy  j 
as  well  as  in  permitting  the  second  to  be  so  carried;  the 
third  class  he  sometimes  prohibits,  and  sometimes  per- 
mits.(")  Vattel  makes  somewhat  of  a  similar  distinction  f 
though  he  includes  timber  and  naval  stores  among  those 
articles  that  are  useful  for  the  purposes  of  war,  and  always 
contraband  ;  whilst  he  considers  provisions  as  such,  only 
in  certain  circumstances,  when  there  are  hopes  of  reducing 
the  enemy  by  famine.('^)  But  the  learned  and  judicious 
Bynkershoek  strenuously  contends  against  admitting  into 
the  list  of  contraband  articles,  those  things  which  are  of 
promiscuous  use.  He  considers  the  limitation  of  the  right 
of  intercepting  them,  to  the  case  of  necessity,  and  under  the 
obligation  of  restitution  or  indemnification^,  as  insufficient  to 
justify  the  exercise  of  the  right  itself.  He  concludes  that 
the  materials  out  of  which  contraband  goods  are  formed, 
are  not  themselves  contraband;  because  if  all  the  materials 
are  prohibited,  out  of  which  something  may  be  made  that 
is  fit  for  war,  the  catalogue  of  contraband  goods  will  be  im- 
mense, since  there  is  hardly  any  kind  of  material,  out  of 
which  something,  at  least,  fit  for  war,  may  not  be  fabricated. 
The  interdiction  of  so  many  articles,  would  amount  to  a 
total  interdiction  of  commerce,  and  might  as  well  be  so  ex- 
pressed.('')  Indeed,  when  we  once  go  beyond  the  line  of 
warlike  instruments  or  materials,  bij   themselves  fit  to  be 

(')   fii'otius,  Dc  J.  n.  ac  p.  L.  3.  c.  1.  §  5. 
C)  Vuttd,  L.  3.  c.  7.  §  112. 

r-)  ii.  J.  r.  L.  1.  0.  10. 


MARITIME    CAPTURES    AND    PRIZES.  177 

used  in  war,  we  know  not  where  to  stop  until  wc  come  to 
the  entire  proscription  of  neutral  trade.  As  to  the  dis- 
tinction by  which  provisions  are  forbidden  to  be  carried  to 
a  blockaded  or  besieged  place  of  the  enemy,  it  is  evident 
that  this  prohibition  is  not'on  account  of  their  contraband 
nature,  but  in  consequence  of  the  blockade  or  siege  itself, 
which  excludes  all  commercial  intercourse  whatsoever  with 
the  place. 

3.  As  little  foundation  is  there  for  the  distinction  raised 
by  the  British  courts  of  prize,  by  which  articles  of  pro- 
miscuous use  are  considered  as  contraband,  when  destined 
to  a  port  of  naval  equipment  ;(^)  since  the  trade  to  such 
ports  must  be  as  free  as  any  other,  unless  they  are  actually 
besieged  or  blockaded.  Nor  is  the  nature  of  the  port  ma- 
terial, as  Sir  William  Scott  has  hims.elf  observed,  since  na= 
val  stores^  if  they  are  to  be  considered  as  contraband,  are 
so  without  referen(j:e  to  the  nature  of  the  port,  and  equally, 
whether  bound  to  a  mercantile  port  only,  or  to  a  port  of 
naval  military  equipment.  The  consequences  of  the  sup- 
ply may  be  nearly  the  same  in  either  case.  If  sent  to  a 
mercantile  port,  they  may  then  be  applied  to  immediate  use 
in  the  equipment  of  privateers,  or  they  may  be  conveyed 
from  the  mercantile  to  the  naval  port,  and  there  become 
subservient  to  every  purpose  to  which  they  could  have 
been  applied  if  going  directly  to  a  port  of  naval  equipment. 
(^)  Another  distinction  which  has  been  adopted  by  these 
courts,  considers  certain  articles  as  contraband  only  so  far 
as  to  give  the  belligerent  power  the  right  of  taking  them  to 
his  own  use,  paying  the  neutral  a  suitable  indemnification  ; 
and  it  is  said  the  practice  of  pre-emption  has  been  subsii- 

(1)  1  liobinson,  26.  The  Staadt  EmbJen.  lb.  22.  Tlie  Kndraugiit. 
1h.  189.  Tlie  Jong-e  Marg-aretlia  3  liobinson,  108.  The  Xepluniis.  4 
Jlobinson,  68  The  Edward  5  liobinson,  97  The  Nostra  Signora  de 
IJegona.  6  Robinson,  92-  'JMie  Frau  Marg'arclha,  lb.  93;  'riie  Zelden 
Hust.    lb.  125.    I'he  Hanger. 

(s)  5  Robinion,*}05.    The  Charlotte. 


178  LAW    OF  CHAl'.    VI. 

tuted,  in  certain  cases,  in  the  place  of  confiscation,  by  the 
modern  law  of  nations. (**)  But  this  practice  appears  to 
have  been  derived  from  the  principle  laid  down  by  Gro- 
lius,  which  restrains  the  rigkt,of  intercepting  things  of 
promiscuous  use  to  the  case  or  necessity,  and  under  the 
obligation  of  restitution  or  indemnification.  And  unless 
it  can  be  shown  that  by  the  ancient  law  of  nations  these  ar- 
ticles were  deemed  contraband,  this  practice,  so  far  from 
being  regarded  as  a  mitigation  of  the  rights  of  war,  can  be 
considered  in  no  other  light  than  an  unlawful  innovation. 
Now  as  to  bread  corn  and  provisions,  commeatun^  they  arc 
not  declared  contraband  by  any  writer  of  authority,  ex- 
cept on  certain  occasions,  when  there  are  hopes  of  reducing 
the  eneni}-  by  famine.  And  as  to  naval  stores.  Sir  William 
Scott,  laying  down  the  doctrine  of  thtir  liability  to  be  seiz- 
ed as  contraband  in  their  own  nature,  when  going  to  the 
cnemv's  use,  under  the  modern  law  of  nations,  observes, 
that  formerly,  when  the  hostilities  of  Europe  were  less  na- 
val than  they  have  since  become,  they  wei^e  of  a  disputable 
nature,  and  perhaps  continued  so  at  the  time  of  making  the 
treaty  between  England  and  Sweden  in  1661,  or  at  least  at 
the  time  of  making  the  treaty  which  is  the  basis  of  it,  that 
of  1656.  And  V^lin,  in  his  commentary,  says,  That  in 
the  war  of  1700,  pitch  and  tar  were  comprehended  in  the 
list  of  contraband,  because  the  enemy  treated  them  as  such, 
except  when  found  on  board  Swedish  ships,  these  articles 
being  of  .he  growth  and  produce  of  their  country.  In  the 
treaty  of  commerce  concluded  with  the  King  of  Denmark, 
the  23d  August,  1742,  pitch  and  tar  were  also  declared 
contraband,  together  with  rosin,  sail  cloth,  hemp  and  cord- 
age, masts  and  ship  timber.  Thus,  as  to  this  matter,  there 
is  n  »  fault  to  be  found  with  the  conduct  of  the  English, 
except  where  it  contravenes  particular  treaties;  for  in  law 


CO  :  Rul>inson,  2.".7    Tlic  Saruh  Clifistina.    Ih,2Z7.   The  Maria. 
Uubinson,  iM.    'I'Lc  Uaubct. 


MARITIME    CAPTURES    AND    PRIZES.  1/9 

these  tilings  ai'e  now   contraband,  and  liave  hnn  so  since 
the  beginning  of  the  present  century,  ivhich  rvtis  not  the 
casejormerly,   as  it  appears  by  ancient  treaties,  and  parti- 
cularly that  of   St.   Germain  concluded  with  England  in 
1677;  the  fourth  article  of  which  expressly  provides,  that 
the  trade  in  all  these  articles  shall  remain  free,  as  well  as 
in  every  thing  necessary  to  human  nourishment;  with  the 
exception  of  places  besieged  or  blockaded.     Sur  Pordon- 
nance^  L.  3.  tit.  9.     Des  Prises^  art.  11.     It  is  difficult  to 
discover  how  the  above  revolution  in  the  law  of  contraband 
mentioned  by  Valin  took  place,  since  he  has  informed  us, 
that  pitch  and  tar  were  declared  such  in  consequence  of  the 
enemies  of  France  having  set  the  example.     And  not  only 
he  more  ancient  French  ordinances,  but  that  of  1681,  upon 
which  he  was  commenting,  had  declared  munitions  of  war 
only  to  be  contraband.     The  same  declaration  is  also  con- 
firmed by  the  i-egulation  of  1744;  and  with  the  exceptions 
inenticg:ied  in  the  third  chapter  of  this  work,  relative  to  the 
total  prohibition  of  neutral  commerce  \vith  the  enemy,  has 
ever  since  continued  to  be  the  law  of  France.     It  is  true 
that  the  stipulations  of  the  above  treaty  between  France 
and  Denmark,  were  afterwards  adopted  in  the  convention 
of  the  4th  July,  1780,  explanatory  of  the  treaty  of  1670,  be- 
tween England  and  Denmark.     But  this  was  done  in  order 
to  preserve  the  impartiality  of  Denmark  in  her  neutral  cha- 
racter, by  conceding  to  England  what  she  had  already  con- 
ceded to  France,  the  other  belligerent  power.     No  infer- 
ence can  therefore  be  drawn  from  it  of  any  change  during 
the  last  century,  by  which  naval  stores,  which  had  formerly 
been  deemed  exempt  from  seizure,  were  declared  contra- 
band of  war. 

By  the  treaty  of  navigation  and  commerce  of  Utrecht 
between  Great  Britain  and  France,  renewed  and  confirm- 
ed by  the  treaty  of  Aix  la  Chapelle  in  1748,  by  the  treaty 
of  Paris  in  1763,  by  the  treaty  of  Versailles  in  1783,  and 
by  the  commercial  treaty  between  Great  Britain  and  France 


180  LAW    OF  (iilAV.  VI. 

of  1786,  the  list  of  contraband  is  confined  to  munitions  of 
war;  and  naval  stores,  provisions,  and  all  other  goods 
which  have  not  been  worked  into  the  forni  of  any  instru- 
ment or  furniture  for  warlike  use,  by  land  or  by  sea,  are 
expressly  excluded  from  this  list.  So  also  by  all  the  trea- 
ties between  Great  Britain  and  Russia,  down  to  that  of 
1801,  munitions  of  war  only  are  considered  as  contraband. 
This  last  treaty  is  the  more  important  as  a  precedent,  be- 
cause, as  has  been  before  shown,  it  is  declaratory  of  the 
primitive  and  pre-existing  law  of  nations,  forming  a  per^ 
manent  rule  between  the  parties,  not  only  to  govern  their 
conduct  towards  each  other,  but  towards  all  the  rest  of  the 
world ;  and  this  is  peculiarly  the  case  with  the  third  section 
of  the  third  article,  relative  to  contraband,  which  is  lite- 
rally copied  from  the  conventions  of  armed  neutrality  of 
1780  and  1800.(^)  By  the  eighteenth  article  of  the  Swe- 
dish ordinance  of  1715,  all  goods  applicable  to  the  purposes 
of  war,  Cl^^^  peuvent  Hre  employees  pour  la  guerfe)  are 
declared  contraband.  And  by  the  treaties  of  1656,  1661, 
J664  and  1665,  between  Sweden  and  England,  munitions 
of  war  only  are  declared  contraband.  We  shall  therefore 
seek  in  vain  in  the  ordinances  of  belligerent  powers,  or  in 
treaties,  for  any  evidence  of  that  change  in  the  law  of  con- 
traband, which  is  supposed  to  have  taken  place  during  the 
last  century.  Indeed  if  any  change  took  place  in  this  re- 
spect during  the  course  of  that  century,  it  may  with  truth 
be  affirmed  to  have  more  accurately  defined  the  list  of  con- 
traband, so  as  to  confine  it  strictly  to  such  articles  as  are 
of  immediate  use  in  war. 

4.  Upon  the  same  principle  which  is  applied  to  other 
munitions  of  war,  ships  built  for  war,  and  going  to  the  ene- 
my's country  for  sale,  are  subject  to  condemnation  as  con- 
traband. But  the  application  of  this  rule  is  restricted  to 
cases,  in  which  no  doubt  exists  as  to  the  character  of  the 

(')  Yiik  Supra,  c.  3.  §  13. 


V 
MARltlME    CAPTtTRF.S    AND    PRIZES.  ISl 

vessels,  or  the  purpose  for  which  they  are  intended  to  be 
5old.O) 

5.  There  is  reason  to  believe,  that  the  ancient  law  of 
prize  did  not  s^abject  contraband  articles  to  confiscation, 
but  only  gave  the  captor  »  tight  of  appropriating  them  to 
his  own  use,  paying  the  owner  a  reasonable  compensation 
for  the  same.  For  the  French  ordinance  of  1584,  art. 
69,  permits  the  capture  of  neutral  vessels  laden  with  muni- 
tions of  war,  destined  for  the  enemy,  and  the  retention  of 
the  cargoes,  according  to  a  reasonable  estimation  to  be  made 
thereof  bij  the  Admiral,  or  his  Lieutenant.  To  this  right 
of  pre-emption,  if  it  formerly  existed,  has  succeeded  the 
penalty  of  confiscation,  which  is  applied  to  contraband  gooda 
captured  on  their  destination  to  the  enemy.  And  as  they 
are  thus  condemned  ex  delictit^  the  carrier  master  is  not! 
entitled  to  his  freight  upon  them,  as  he  is  upon  innocent 
articles  which  are  condemned  as  enemy's  property.  For 
though  the  master  has  an  implied  lien  upon  the  goods 
for  his  freight,  and  though  they  may  be  expressly  bound 
for  its  payment,  and  it  is  a  maxim  of  the  civil  law,  that  if 
the  pledge  is  forfeited,  the  Jus  pignoris  is  not  thereby  eort- 
sequently  extinguished  ;  yet,  as  Bynkershoek  has  justly 
observed,  what  is  condemned  is  to  be  considered  as  if  it 
had  perished  by  inevitable  accident,  whereby  the  Jus  pig- 
noris  is  extinguished. (^) 

A  question  arises  whether  the  vessel,  on  board  of  which 
the  contraband  articles  are  laden,  and  the  other  goods  of 
her  cargo  are  also  subject  to  confiscation.  This  question 
is  determined  in  the  negative  by  the  French  Ordinance  of 
August,  1681,  L.  3.  tit.  9.  Des  Prises,  Art.  11,  the  Regu- 
lation of  the  23d  July,  1704,  and  of  the  21st  October,  1744. 

(k)  5  Robinson,  325.    The  Richmond.    lb.  Additional  Notes,  No  I. 

(1)  Q.  J.  P.  L.  1.  c.  10.  1  Robmson,  91.  The  Ringende  Jacob.  Ib.24,2. 
Thf  Sarah  Christina,  lb.  288.  The  Mercurius.  4  Robinson,  200.  ThjS 
Oster  Risoer. 

24 


182  LAW    OF  CHAP    tl' 

The  regulation  of  the  eSth  July,  1778,  provides  that  if 
three  fourths  in  value  of  the  cargo  consists  of  contraband 
articles  the  remainder  of  the  cargo  and  the  vessel  shall  be 
included  in  the  confiscation.  The  authority  of  other  ordi- 
nances and  treaties  generally  concurs  in  subjecting  to  con- 
fiscation the  contraband  articles.  As  to  the  vessel^  Byn- 
kershoek  distinguishes  whether  she  belongs  to  the  master 
himself,  or  to  others.  But  this  circumstance  does  not  ap- 
pear to  afford  any  just  foundation  for  a  distinction,  since 
by  the  municipal  law  the  master  is  the  agent  of  the  owners 
in  respect  to-  the  management  and  employment  of  the  ves- 
sel. Nor  is  his  further  distinction,  whether  the  master 
knew  that  the  contraband  goods  had  been  shipped  on  board 
or  was  ignorant  of  it,  any  better  founded  ;  since,  as  Byn- 
kershoek  has  himself  observed,  according  to  the  present 
usage  the  master  is  in  the  habit  of  signing  bills  of  lading  of 
the  merchandize  shipped  on  board  his  vessel,  and  as  the 
revenue  laws  of  all  countries  presume  the  master  to  be  con- 
usant of  what  goods  are  laden  on  board  his  vessel.  As  to 
the  goods^  he  also  makes  the  distinction  whether  all  the 
goods  belong  to  one  and  the  same  owner  or  to  several.  If 
to  one  and  the  same  owner,  he  thinks  the  whole  may  be 
justly  confiscated,  as  by  the  Roman  law  in  revenue  cases  if 
any  one  carries  at  the  same  time  lawful  and  unlawful  mer- 
chandi:ie,  and  declares  the  one  and  conceals  the  other, 
both  are  confiscated  on  account  of  the  fraud  of  the  carrier, 
as  the  commentators  on  the  title  of  the  Digest  De  Publicanis 
ct  Vectifralibus  have  collected  from  the  text  of  that  law  it- 
self, and  from  the  third  law  of  the  code  De  Nautico  F(t- 
nore.Q")  This  last  distinction  is  better  founded,  and  is 
followed  in  practice  both  as  to  the  vessel  and  the  goods. 
Thus  where  the  ship  and  the  cargo  do  not  belong  to  one  and 
the  same  person,  the  carriage  of  contraband  under  the  frau- 

(")  Omnino  diitinq-uai(lu7n  puicin  an  licitx  et  illicitiC  merces  ad  cnndemdo' 
■minuin  perliiicant,  an  nd  dh;rrso3  ;  si  tld  cundem  oimtesrecte  piiblicxibttntuv ,. 
ibcoHlincntiam  delicti.    Q- J,  P.  L.  1.  c.  12. 


MARITIME    CAPTURES    AND    PRIZES.  I'Svi 

• 

dulent  circumstances  of  false  papers  or  false  destination  will 
work  a  condemnation  of  the  ship  as  well  as  the  cargo.(») 
The  same  effect  is  likewise  produced  by  the  carriage  of 
contraband  articles  in  a  ship,  the  owner  of  which  is  bound, 
by  the  express  obligation  of  the  treaties  subsisting  between 
his  own  country  and  the  belligerent  state^  to  refrain  from 
carrying  such  anicles  to  the  enemy.  In  such  a  case,  the 
ship  throws  off  her  neutral  character,  and  is  liable  to  be 
treated  at  once  as  an  enemy's  vessel,  and  as  a  violator  of  the 
solemn  compacts  of  the  country  to  which  she  belongs. (") 
Excepting  in  these  instances,  the  remainder  of  the  cargo 
and  the  ship,  unless  they  belong  to  the  owner  of  the  con- 
ti-aband  articles,  are  not  involved  in  the  confiscation  of  the 
latter.  But  where  the  ship  and  the  innocent  articles  of  the 
cargo  belong  to  the  owner  of  the  contraband  they  arc  all 
involved  in  the  same  penalty.(P) 

7.  This  penalty  has  lately  been  attempted  to  be  extended 
to  the  return  voyage  by  the  British  courts  of  prize  in  cases 
where  contraband  had  been  carried  outward  with  false 
papers.  But  it  is  evident  that  this  innovation  is  not  found- 
ed upon  principle  ;  for  in  order  to  sustain  the  penalty  there 
must  be  a  deiictum  at  the  moment  of  seizure.  To  subject 
the  property  to  confiscation  whilst  the  offence  no  longer 
continues,  would  be  to  extend  it  indefmitely,  not  only  to 
the  return  voyage,  but  to  all  future  voyages  of  the  same 
vessel,  which  could  never  be  purified  from  the  contagion 
communicated  by  the  contraband  articles.  From  the  mo- 
ment of  quitting  port,  indeed,  the  offence  is  complete,  and 
it  is  not  necessary  to  wait,  till  the  goods  are  actually  endea- 
vouring to  enter  tiie  enemy's  port  ;  but  beyond  that,  if  the 

(")  3  Robinson,  2\7 .  The  Franklin,  4- liobhisoii,  69.  The  Edwaru. 
6  Robinson,  125.  The  Hanger. 

(")  3  Robinson,  29 5.    The  Ncutralltct- 

(p)  1  Rabinson,31.  The  StaadtEmbcIcn  rb.  2S8.  The  Mercnriu^,  288 
Jn  Notis.    ib,  330,    The  Jongc  Tobias.  ' 


184  i-AAV    Oi'  CHAl'.  VI^ 

gootls  are  not  taken  in  delicto^  and  in  the  actual  prosecution 
of  such  a  voyage,  the  penalty  is  not  held  to  attach. ('i) 

8.  Of  the  same  natiire  with  the  carrying  of  contraband  is 
fhe  transportation  of  military  persons  or  despatches  in  the 
service  of  the  enemy. 

9.  A  neutral  vessel  which  is  used  as  a  transport  for  the 
enemy's  forces  is  subject  t«  confiscation.  Nor  will  the  fact 
of  her  being  impressed  by  duress  and  violence  into  that 
service  exempt  her  from  this  penalty.  The  master  cannot 
be  permitted  to  aver  that  he  was  an  involuntary  agent  in 
the  matter.  Were  an  act  of  force  exercised  by  one  belli- 
gerent power  on  a  neutral  ship  or  person,  to  be  deemed  a 
sufficient  justification  for  any  act  done  by  him,  contrary  to 
the  known  duties  of  the  neutral  character,  there  v/ould  be 
an  end  of  any  prohibition  under  the  law  of  nations  to  carry 
contraband,  or  to  engage  in  any  other  hostile  act.  If  any 
loss  is  sustained  in  such  a  service,  the  neutral  yielding  to 
such  demands,  must  seek  redress  against  that  government 
which  has  imposed  the  restraint  iipon  him.  And  the  for- 
feitux-e  is  not  extinguished,  until  the  vessel  has  receded 
from,  and  shaken  off,  her  belligerent  character.  So  long 
'4S  she  remains  under  the  command  and  control  of  the  en- 
emy, she  continues  liable  to  capture  and  condemnation. (■■) 

And  wliere  a  neutral  vcfesel  was  taken,  v/ith  a  few  goods 
of  small  bulk  and  little  value,  and  a  number  of  officers  and 
mariners  in  the  military  service  of  the  enemy  on  board, 
she  was  held  subject  to  condemnation,  notwithstanding  her 
partial  commercial  character.  There  is  no  precise  techni- 
cal definition  of  transport  vessels,  more  than  this,  that  they 
are  vessels  hired  by  the  government  to  do  such  acts  as 
shall  be  imposed  upon  them,  in  the  military  service  of  the 
country ;  and  it  is  by  no  means  essential  to  the  character 
of  a  transport,  that  she  should  be  chartered  in  a  particular 

(1)  3  liobinson,  167.    The  Imina. 
(')  4  Robinson,  256.    Th«  CaroliQa. 


^l  '■■  \  .,■,. 


i-lAHITIME    CAPTURES    AND    miZES.  iSrJ 

manner,  or  in  any  particular  form  of  words,  or  by  any  par- 
ticular department  of  the  government.     The  form  is  of  no 
importance.     The  substance  of  the  thing  is,  whether  they 
are  vessels  hired  by  the  agents  of  the  government,  for  the 
purpose  of  conveying  soldiers  in  the  service  of  the  state  ? 
That  is  the  substance  ;  and  it  signifies  nothing,  whether  the 
men  so  conveyed,  are  to  be  put  into  action  on  an  immedi- 
ate expedition  or  not.     The  m.cre  shifting  of  drafts  in  de- 
tachments, is  an  ordinary  employment  of  trcmsport  vessels, 
and  it  is  a  distinction  totally  unimportant,  whether  this  or 
that  case  mav  be  connected  with  the  immediate  active  ser- 
\  ice  of  the  enemy.     In  removing  forces  from  distant  set- 
tlements, there  may  be  an  intention  of  immediate  action : 
but  still  the  general  importance  of  having  troops  conveyed 
to  places  where  it  is  convenient  that  they  should  be  collect- 
ed, either  for  present,  or  future  use,  is  what  constitutes 
the  object  and  employment  of  transport  vessels.     Different 
Is  the  character  and  the  case  of  a  vessel  carrying  only  a  few 
individual  invalid  soldiers,  or  discharged  sailors,  taken  on 
board  by  chance,  and  at  their  own  charge. (®)     What  is  the 
number  of  military  persons  that  shall  affect  the  vessel  with 
confiscation,  it  may  be  difficult  to  define.  In  the  above  case 
there  were  many  ;  but  number  alone  is  an  insignificant  cir- 
cumstance in  the  considerations,  on  which  the  principle  of 
law  on  this  subject  is  built;  since  fewer  persons  of  high 
quality  and  character  may  be  of  more  importance  than   a 
much  greater  number  of  persons  of  lower  condition.     To 
carry  a  veteran  general,  under  some   circumstances,  might 
be  a  much  more  noxious  act  than  the  conveyance  of  a  whole 
regiment.  The  consequences  of  such  assistance  are  greater, 
and  therefore  it  is  what  the  belligerent  state  has  a  stronger 
right  to  prevent   and  punish.     Nor  is  it  material  whether 
the  master  be  ignorant  of  the  character  of  the  service  on 
which  he  is  engaged,  nor  necessary  that  there  should  be 

C)  6  Robinson,  420.  Tke  Friendship,  Collard. 


-ISG  I/AW    OF  CHAf.   VI, 

some  proof  of  delinquency  in  him,  or  his  owner,  in  order 
to  support  the  penalty.  It  is  sufficient  if  there  has  been  an 
injury  arising  to  the  belligerent  state  from  the  employment 
in  which  the  vessel  is  found.  If  imposition  be  practised, 
it  operates  as  force  ;  and  if  redress  is  to  be  sought  against 
any  person,  it  must  be  against  those,  who  have,  by  means 
cither  of  compulsion  or  deceit,  exposed  the  property  to 
danger]  otherwise  such  opportunities  of  conveyance  would 
be  constantly  used,  and  it  would  be  almost  impossible,  in 
the  greater  number  of  cases,  to  prove  the  knowledge  and 
privity  of  the  immediate  ofFender.(^) 

10.  The  fraudulent  carrying  the  despatches  of  the  enemy 
will  also  subject  the  neutral  vessel  in  which  they  are  trans- 
ported, to  capture  and  confiscation.  The  consequence  of 
such  a  service  is  indefinite,  infinitely  beyond  the  effect  of 
any  contraband  that  can  be  convej^ed.  The  carrying  of  two 
or  three  cargoes  of  military  stores  is  necessarily  an  assist- 
ance of  a  limited  nature  ;  but  in  the  transmission  of  des- 
patches, may  be  conveyed  the  entire  plan  of  a  campaign, 
that  may  defeat  all  the  projects  of  the  other  belligerent  in 
that  quarter  of  the  world.  It  is  true,  as  it  has  been  said, 
that  one  ball  might  take  off  a  Charles  the  Xllth,  and  might 
produce  the  most  disastrous  effects  in  a  campaign ;  but 
that  is  a  consequence  so  remote  and  accidental,  that  in  the 
contemplation  of  human  events  it  is  a  sort  of  evanescent 
quantity  of  which  no  account  is  taken ;  and  the  practice 
has  been  accordingly^  that  it  is  in  considerable  quantities 
only  that  the  offence  of  contraband  is  contemplated.  The 
case  of  despatches  is  very  different  j  it  is  impossible  to  li- 
HiTt  a  letter  to  so  small  a  size,  as  not  to  be  capable  of  pro- 
ducing the  most  important  consequences  in  the  operations 
of  the  enemy  :  it  is  a  service  therefore,  which,  in  whatever 
degree  it  exists,  can  only  be  considered  in  one  character, 
as  an  act  of  the  most  noxious  and  hostile  nature*     Thi 

(f)  6  Jiobinson,  430.    X^c  Orozembo. 


MAftitlME    CAPTURES    AND    PRIZES-  ISt 

<}ffence  of  fraudulently  carrying  despatches  in  the  service  of 
the  enemy,  being  then  greater  than  that  of  carrying  contra- 
band under  any  circumstances,  it  becomes  absolutely  neces- 
sary, as  well  as  just,  to  resort  to  some  other" penalty  than 
that  inflicted  in  cases  of  contraband.  The  confiscation  of 
the  noxious  article,  which  constitutes  the  penalty  in  contra- 
band, where  the  vessel  and  cargo  do  not  belong  to  one  and 
the  same  person,  would  be  ridiculous  when  applied  to  dcs- 
patches.  There  would  be  no  freight  dependent  on  their 
transportation,  and  therefore  this  penalty  could  not,  in  the 
nature  of  things,  be  applied.  The  vehicle  in  which  thty 
were  carried  must  therefore  be  confiscated. (■^) 

But  carrying  the  despatches  of  an  ambassador  or  othcv 
public  minister  of  the  enemy,  resident  in  a  neutral  country, 
is  an  exception  to  the  reasoning  on  which  the  above  gene- 
ral rule  is  founded.  They  are  despatches  from  person.'.* 
who  are,  in  a  peculiar  manner,  the  favourite  objects  of  the 
protection  of  the  law  of  nationsT  residing  in  the  neutral 
country  for  the  purpose  of  preserving  the  relations  of  ami- 
ty between  that  state  and  theirown  government.  On 
this  ground  a  very  material  distinction  arises,  with  respect 
to  the  right  of  furnishing  the  conveyance.  The  neutral 
country  has  a  right  to  preserve  its  relations  with  the  ene- 
my, and  you  are  not  at  liberty  to  conclude,  that  any  com- 
munication between  them  can  partake,  in  any  degree,  oi 
the  nature  of  hostility  against  you.  The  enemy  may  have 
his  hostile  projects  to  be  attempted  in  the  neutral  state  ; 
but  your  reliance  is  on  the  integrity  of  that  state,  that  it  will 
not  favour  nor  participate  in  such  designs,  but  as  far  as  its 
own  councils  and  actions  are  concerned,  will  oppose  them. 
And  if  there  should  be  private  reason  to  suppose  that  this 
confidence  in  the  good  faith  of  the  neutral  state  has  a  doubt- 
ful foundation,  that  is  matter  for  the  caution  of  the  gov- 
''iliment,  to  be  counteracted  by  just  measures  of  prevent  ■-■ 

(0  6  Rob'm:on,  44(f    The  A'a';i"/..->. 


LAW    cr  ttlAP.    f?. 

policy,  but  is  no  g;Tund  on  Av]jic!i  a  pivzc  court  can  pro- 
jioancc  ihat  tlv.-  n  viral  muster  has  violated  his  duty  by 
bearing  despatches,  ■•.vhich,  as  far  as  he  c:;n  know,  mav  be 
presumed  to  be  of  an  innocent  nature,  and  in  the  mainte- 
nance of  a  pacific  connexion.  The  limits  assignm  tbtlie 
operations  of  v;a-r  against  embassadors,  by  writers  on  pub- 
lie  law,  are,  that  the  belligerent  may  exercise  his  riglit  of 
"ivar  against  them,  v/herever  the  character  of  hostility  ex- 
ists:  he  may  stop  the  ambassador  of  his  enemy  on  nii 
passage  ;  but  when  he  has  arrived  in  the  neutral  country, 
and  taken  on  himself  the  functions  of  his  office,  and  has 
been  admitted  in  his  I'epresentative  character,  he  becomes 
a  sort  of  uiidc/k-inan,  entitled  to  peculiar  privileges  as  set 
apart  for  the  protection  of  the  relations  of  amity  and  peace, 
in  maintaining  which  all  nations  are,  in  some  degree,  inter- 
ested. If  it  be  argued,  that  he  retains  his  national  char- 
acter unmixed,  and  that  even  his  residence  is  considered 
as  a  residence  in  his  own  country ;  it  is  answered,  that  this 
is  a  fiction  of  law,  invented  for  his  further  protection  only, 
and  as  such  a  fiction,  it  is  not  to  be  extended  beyond  the 
reasoning  on  which  it  depends.  It  was  intended  as  a  pri- 
vilegc  ;  and  cannot  be  urged  to  his  disadvantage.  Could 
it  be  said  that  he  would  on  that  principle,  be  subject  to  any 
of  the  rights  of  war  in  a  neutral  territory  ?  Certainly  not; 
he  is  there  for  the  purpose  of  carrying  on  the  relations  oi 
peace  and  amity,  for  the  interest  of  his  own  country  pri- 
inarilv,  but,  at  the  same  time,  for  the  furtherance  and  pro- 
tection of  the  interests,  which  the  neutral  country  also  has 
in  the  continuance  of  those  relations.  It  is  to  be  consid-' 
ered  also,  with  regard  to  this  question  what  may  be  due  to 
the  convenience  of  the  neutral  state;  for  its  interests  ma} 
rlequire  that  the  intercourse  of  correspondence  with  the  en- 
cmv's  country  should  not  be  altogether  interdicted.  It 
might  be  thought  to'  amount  almost  to  a  declaration, 
thai  an  ambassador  fiom  th^  Aicmy  shall  not  reside  in  tXv.: 
neutral  state,  if  he  is  declared  to  be  debarred  from  the  on- 


MARITIME    CAPTURES    AND    PRIZES.  189 

ly  means  of  communicating  with  his  own.  For  to  what 
useful  purpose  can  he  reside  there,  without  the  opportuni- 
ties of  such  a  communication?  It  is  too  much  to  say  that 
all  the  business  of  the  two  states  shall  be  transacted  by  the 
minister  of  the  neutral  state,  resident  in  the  enemy's  coun- 
try. The  practice  of  nations  has  allowed  to  neutral  states 
die  privilege  of  receiving  ministers  from  the  belligerent 
powers,  and  the  use  and  convenience'of  an  immediate  ne- 
gociation  with  them.  This  exception  may  be  liable  to 
g;reat  abuses,  and  so  perhaps  will  any  rule  that  can  be  laid 
down  on  this  subject: — > 

^^—Mllle  adde  catenas  ; 
Effi/ffiet  tameii  Lee — 

Opportunities  of  conveying  intelligence  may  always  exist 
in  some  form  or  other.  (^) 

And  it  is  the  general  rule^  that  the  master  is  not  at  lib- 
erty to  aver  his  ignorance  of  the  nature  of  the  papers  taken 
on  board,  but  that  if  he  is  made  the  victim  of  imposition 
practised  on  him  by  his  private  agent,  or  by  the  govern- 
ment of  the  enemy,  he  must  seek  for  his  redress  against 
them.  It  is  considered  as  a  proof  of  fraud,  if  dispatches, 
being  on  board,  are  not  produced  voluntarily  in  the  first  in- 
stance.(^)  But  where  the  commencement  of  the  voyage  is 
in  a  neutral  country,  and  it  is  to  terminate  at  a  neutral 
port,  or  at  a  port  to  which,  though  not  neutral,  an  open 
trade  is  allowed,  in  such  a  case  there  is  less  to  excite  his 
vigilance,  and  therefore  it  may  be  proper  to  make  some  al- 
lowance for  any  imposition  that  may  be  practised  upon  him : 
and  where  the  despatches  come  to  the  master  among  a  va- 
riety of  other  letters  from  private  persons  where  they  are 
concealed  in  an  envelope,  addressed  to  a  private  person  j 
and  were  taken  on  board  in  a  neutral   country — these  are 

{")  6  Sobinson,  461.    The  Caroline.      1  iTJwar Js,  224.     The  Madisoft* 
C)  6  Robinson,  461.    InJiotis. 

25' 


iQd  LAW    OP  CHAP.  VI* 

circumstances  which  WQuld  induce  a  court  of  prize  to  con- 
sider the  case  as  excepted  from  the  general  rule.('') 

11.  Another  exception  to  the  general  freedom  of  neu- 
tral commerce  in  time  of  war  is  to  be  found  in  the  trade 
to  blockaded  ports. 

12.  The  right  of  blockade  has  been,  at  various  periods 
of  history,  abused  by  belligerent  powers  to  the  total  prohi- 
bition of  neutral  commerce  with  the  enemy,  or  for  the  pur- 
pose of  obtaining  a  commercial  monopoly  for  the  private 
advantage  of  the  state  imposing  the  blockade.  Thus  by  the 
Convention  concluded  at  London  on  the  22d  August,  1689, 
between  England  and  Holland,  the  contracting  parties  state 
in  the  preamble. — That  having  declared  war  against  the 
Most  Christian  king,  it  behooves  them  to  do  as  much  damage 
as  possible  to  the  common  enemy,  in  order  to  bring  him  to 
agree  to  such  conditions  as  may  restore  the  repose  of  Chris- 
tendom :  and  that,  for  this  end  it  was  necessary  to  inter- 
rapt  all  trade  and  commerce  with  the  subjects  of  the  said 
king  ;  and  that,  to  effect  this,  they  had  ordered  their  fleets 
to, block  up  all  the  ports  and  havens  of  France  :  and  in  the 
second  and  third  articles  of  the  same  convention  it  is 
agreed,  that  they  would  take  an^'  vessel,  whatever  king  or 
state  it  may  belong  to,  that  shall  be  found  sailing  into  or 
out  of  the  ports  of  France,  and  condemn  both  vessel  and 
merchandize  as  legal  prize ;  and  that  this  resolution  should 
be  notified  to  all  neutral  states. (y)  And  by  the  several 
conventions  and  treaties  of  the  2'5th  March,  1793,  between 
Great  Britain  and  Russia;  of  the  25th  May,  1793,  be- 
tween Great  Britain  and  Spain;  of  the  14th  July,  1793, 
between  Great  Britain  and  Prussia ;  and  of  the  30th  Au- 
gust, 1793,  between  Great  Britain  and  Austria,  it  was  sti- 
pulated by  the  several  contracting  parties,  that  they  would 
unite  their  efforts  to  prevent  other  powers,  not  implicated  in 

(")  1  Edwards,  228.    TIic  Kapid. 
'^^)  Jjord  Liverpool's  Discourse,  36. 


MARITIME    CAPTURES    AND    PRIZES.  191 

the  war,  from  giving,  on  this  occasion  of  common  concern 
to  every  civilized  state,  any  protection  whatever,  directly 
or  indirectly,  in  consequence  of  their  neutrality,  to  the 
commerce  or  property  of  the  French,  on  the  sea,  or  in  the 
ports  of  France.     So  also  by  the  declaration  of  the  British 
government  of  the  16th  May,  1806,  the  coasts,  rivers  and 
ports  from  the  river  Elbe  to  Brest  inclusive,  were  declared 
in  a  state  of  blockade,  excepting  that  the  blockade  should 
not  extend  to  prevent  neutral  vessels,  laden  with  goods  not 
feeing  the  property  of  his  Britannic  Majesty's  enemies,  and 
not  being  contraband  of  war,  from  approaching  the  said 
coasts,  and  entering  into  and  sailing  from  said  rivers  and 
ports,  (saving  the  coast,  rivers  and  ports  from  Ostend  to  the 
river  Seine,  already  then  in  a  state  of  strict  and  rigorous 
blockade,  and  which  were  to  be  c  nsidered  iis  so  continued) 
provided  the  said  vessels  so  approaching  and  entering  (save 
as  aforesaid)  should  not  have  been  laden  at  any  port  be- 
longing to  or  in  the  possession  of  his  said  Majesty's  ene- 
mies ;  and  that  the  said  vessels  should  not  be  destined  to 
any  port  belonging  to  or  in  the  possession  of  his  said  Ma- 
jesty's enemies,  nor  have  previously  broken  the  blockade. 
And  by  the  British  Order  in  Council  of  the  7th  January, 
1807",  It  was  declared,  that  no  vessel  should  be  permitted 
to  trade  from  one  port  to  another,  both  which  ports  should 
belong  to  or  be  in  the  possession  of  France  or  her  allies,  or 
should  be  so  far  under  her  control  as  that  British  vessels 
might  not  freely  trade  thereat.     And  by  the  British  Or- 
ders in  Council  of  the  11th  November,  1807,  it  was  de- 
clared, that  all  ports  and  places  of  France  and  her  allies, 
or  of  any  other  country  at  war  with  his  Britannic  Majesty^ 
and  all  other  ports  or  places  in  Europe,  from  which,  al- 
though not  at  war  with  his  said  Majesty,  the  British  flag 
was  excluded,  and  all  ports  or  places  in  the  colonies  belong- 
ing to  his  said  Majesty's  enemies,  should  be  subjected  to 
the  same  restrictions  in  trade  and  navigation  as  if  actually 
blockaded  in  the  most  strict  and  rigorous  manner ;  except- 


|92  LAW    0¥  CHAP.  VI 

ing  the  direct  trade  between  the  countries  not  nicluded  in 
tlie  order  and  said  colonies,  and  also  excepting  an}'  vessel 
and  cargo  belonging  to  any  country  not  at  war  with  his  said 
Majesty,  clearing  out  under  certain  regulations,  and  pro- 
ceeding direct  from  some  British  port,  or  from  Gibraltar  or 
M  dta,  or  from  any  port  belonging  to  the  allies  of  his  said 
Majesty,  to  the  port  specified  in  her  clearance,  or  coming 
from  any  port  or  place  in  Europe  included  in  the  order,  and 
destined  to  some  port  or  place  in  Europe  belonging  to  his 
said  Majesty,  and  which  should  be  on  her  voyage  direct 
thereto.  And  also  by  the  French  Decree,  issued  at  Berlin 
on  the  21st  November,  1806,  the  British  islands  were  de- 
clared in  a  state  of  blockade,  and  all  commerce  and  corres- 
pondence with  them  were  prohibited.  And  by  the  Decree 
issued  at  Milan,  on  the  17ih  December,  1807,  the  same  de- 
claration was  renev/ed,  and  every  vessel  of  whatsoever  na- 
tion, or  whatsoever  the  nature  of  its  cargo  might  be,  pro- 
ceeding from  the  ports  of  England,  or  her  colonies,  or  the 
countries  occupied  by  English  troops,  and  going  to  England, 
or  her  colonies,  or  countries  occupied  by  English  troops, 
was  declared  good  and  lawful  prize. 

But  such  blockades  are  wholly  illegal  and  void.  Nor 
can  they  be  justified  upon  the  principle  of  retaliation;  for 
retaliation  can  only  be  exercised  upon  the  party  who  has 
committed  the  injurj^,  and  not  against  a  friendly  and  neu- 
tral power.  Retorsio  non  esi  7iisi  adversus  ei/m^  qui  ipse 
damni  quid  dcdit^  ac  dcind<-  patitur^  non  vera  adversus  com- 
tnunem  amicutn.(^)  And  as  we  have  before  observed,  in 
the  words  of  Sir  William  Scott,  the  true  mode  of  correct- 
ing the  irregular  practice  of  a  nation  is  by  protesting 
against  it,  and  by  inducing  that  country  to  reform 'it;  it  is 
monstrous  to  suppose,  that  because  one  country  has  been 
guilty  of  an  irregularity,  every  other  country  is  let  loose 

(«)  Bijnkershick,  Q.  J.  P,  U  1.  <J.  4. 


MARITIME    CAP'XURES    AND    PIUIJES.  l©3i 

irom.  the  law  of  nations,  and  is  at  liberty  to  assume  as  much 
as  it  thinks  fit.(=') 

13.  By  the  law  of  nations,  the  denomination  of  a  block- 
aded port  is  given  only  to  that  where  there  is,  by  the  dis- 
position of  the  power  which  attacks,  or  invests  it,  with 
sliips  stationary,  or  suiiiciently  near  to  occasion  an  evident 
danger  in  entering.(''j  And  even  where  there  is  such  an 
actual  investment  of  the  port,  if  any  of  the  blockading  ships 
should  not  have  enforced  it,  the  blockade  is  so  far  relaxed. 
If  the  blockade  has  not  been  duly  carried  into  effect  by  the 
ships  stationed  on  the  spot  for  the  purpose,  it  is  impossible 
for  a  court  of  prize  to  enforce  it.(-*') 

To  a  violation  of  blockade  thus  legdly  constituted  and 
continued,  two  things  are  necessary — 1st,  The  knowledge 
of  the  party ;  and,  2dly,  Sonae  act  of  violation,  either  by 
going  in,  or  by  coming  out  with  a  cargo,  after  the  com- 
mencement of  the  blockade.C^) 

14.  As  a  proclamation,  or  general  public  notification,  is 
not  of  itself  sufficient  to  constitute  a  legal  blockade,  so  nei- 
ther can  a  knowledge  of  the  existence  of  such  a  blockade 
be  imputed  to  the  party  merely  in  consequence  of  such  a 
proclamation  or  notification.  Not  only  must  an  actual 
blockade  exist,  but  a  knowledge  of  it  must  be  brought  home 
to  the  party,  in  order  to  shew  that  it  has  been  violated.(*) 
As  on  the  one  hand,  a  declaration  of  blockade  which  is  not 
supported  by  the  fact  cannot  be  deemed  legally  to  exist,  so 
on  the  other  hand,  the  fact,  duly  notified  to  the  party  on 
the  spot,  is  of  itself  sufficient  to  affect  him  with  a  knowledge 
of  it ;  for  public  notifications  between  governments  can  be 

(a)  1  Robin&on,  142.    The  Plad  Oyen. 

('')  Vide  Appendix,  No.  III. 

(•=)  3  Robinson,  147.    The  JafFrow  Maria  Schroeder. 

(^)  1  Robinson,  93.    The  Betsey.  '    ' 

O  t  Bobinson,  93.    Th^  Betsey.  ■'      ,  / 


104  LAW    OF  CHAP.  VI. 

meant  only  lor  the  Information  of  individuals :  but  if  the 
individual  is  personally  informed,  that  purpose  is  still  bet- 
ter obtained  than  by  a  public  declaration. C^)  Where  the 
vessel  sails  from  a  country  lying  sufficiently  near  to  the 
blockaded  port  to  have  constant  information  of  the  state  of 
the  blockade,  whether  it  is  continued  or  is  relaxed,  no  spe- 
cial notice  is  necessary;  for  the  public  declaration  in  this 
case  implies  notice  to  the  party  after  sufficient  time  has 
elapsed  to  receive  the  declaration  at  the  port  from  whence 
the  vessel  sails.(^)  But  where  the  country  lies  at  such  a 
distance  that  the  inhabitants  cannot  have  this  con-^.tant  in- 
formation, they  may  send  their  vessels  conjecturedly,  upon 
the  expectation  of  finding  the  blockade  broken  up,  after  it 
has  existed  for  a  considerable  time.  In  this  case,  the  party 
has  a  right  to  make  a  fair  enquiry  whether  the  blockade  be 
determined  or  not,  and  consequently  cannot  be  involved  in 
the  penalties  affixed  to  a  violation  of  it,  unless  upon  such 
enquiry  he  receives  notice  of  the  existence  of  the  block- 
ade. (*») 

Where  the  blockade  has  been  declared  by  a  public  noti-» 
fication  from  the  government  of  the  belligerent  country  to 
neutral  governments,  it  is  the  duty  of  the  belligerent  coun- 
try, which  has  thus  declared  the  existence  of  the  blockade, 
to  notify,  in  the  same  way,  and  immediately,  the  disconti- 
nuance of  it:  to  suffer  the  fact  to  cease,  and  to  apply  the 
notification  again,  at  a  distant  time,  would  be  a  fraud  on 
neutral  nations.  In  such  a  case  the  blockade  must  be 
supposed  to  exist  until  it  has  been  publicly  repealed.(') 
For  it  is  to  be  presumed,  that  t^ie  notification  will  be 
formally  revoked,  and  that  due  notice  will  be   given   of 

(')  1  Jtobinson,  83.     The  Mereurlus. 

(m)  2  Robinson,  IGl-  The  ^onge  Petronella.  lb.  298.  The  Cal}T>6e 
3  Robinson,  173.     The  Neptunus. 

('■)  I  Robimon,  332.    The  Betsey,  Gooiibuj. 

{')  1  Robinson,  170,    Tlic  Neptunus. 


MARITIME    CAPTURES    AND    PRIZE?.  IQJ 

it :  till  that  is  done,  the  blockaded  port  is  to  be  consi- 
dered as  closed  up  ;  and  from  the  moment  of  quitting 
port  to  sail  on  such  a  destination,  provided  the  coun- 
try in  which  the  port  is  situated  be  sufficiently  near  the 
blockaded  port  to  have  constant  information  of  the  state  of 
the  blockade,  the  offence  of  violating  the  blockade  is  com- 
plete. It  is  different  in  a  blockade  existing  de  facto  only ; 
there  no  presumption  arises  as  to  the  continuance,  and  the 
ignorance  of  the  party  may  be  admitted  as  an  excuse  for 
sailing  on  a  doubtful  and  provisional  destination.  The 
effect  of  such  a  notification  to  neutral  governments,  is  to 
include  all  the  individuals  of  that  nation,  after  a  sufficient 
time  has  elapsed  to  communicate  the  information  to  them. 
After  that  period,  a  neutral  master  cannot  be  heard  to  aver 
agaitist  a  notification  of  blockade,  that  he  was  ignorant  of 
it.  If  he  is  really  ignorant  of  it,  it  may  be  a  subject  of  re- 
presentation to  his  own  government,  and  may  raise  a  claim 
of  compensation  from  them,  but  it  can  be  no  plea  in  a  prize 
court  of  the  belligerent. (^)  But  the  penal  consequences 
of  a  notification  given  to  one  power,  will  not  affect  the  sub- 
jects of  another  state  from  the  same  time,  and  in  the  same 
manner,  as  it  would  affect  the  subjects  of  those  states  to 
whom  it  was  directly  made.  To  say  that  it  does  not  affect 
at  any  time,  would  be  going  too  far  ;  because,  if  a  notifica- 
tion is  made  to  the  principal  neutral  states,  a  time  would 
come  when  it  would  affect  the  rest ;  not  proprio  vigor e^  or 
by  virtue  of  the  direct  act,  but  in  the  way  of  evidence. 
The  knowledge  of  it  would  spread,  and  after  the  lapse  of 
a  reasonable  time,  must  be  considered  as  a  reasonable 
ground  of  evidence. (') 

The  fact  of  clearing  out  for  a  blockaded  port,  is  in  itself 
innocent,  unless  it  be  accompanied  with  knowledge  of  the 
blockade.     The  right  to  treat  the  vessel  as  an  enemy  is  dc- 

('<)  2  liobinsbn,  110.    The  Xeptunus. 

0)  2  lii'binsoTi,  111.     The  Adclu'.dc     /".  .^';  ."? 


IQ'G  LAW   OF  CHAP.    i'T, 

clared  by  Vattel,  b.  3.  §  177.  to  be  founded  on  the  af tempt 
to  enter,'  and  certainly  this  attempt  must  be  made  by  a 
person  knowing  the  fact.  The  law  of  nations  does  not  ad- 
mit of  the  condemnation  of  the  neutral  vessel  for  the  inten- 
tion to  enter  a  blockaded  port,  unconnected  with  any  fact. 
Sailing  for  a  blockaded  port,  knowing  it  to  be  blockaded, 
was  in  the  above  cases  construed  into  an  attenipt  to  enter 
that  port,  and  was  therefore  adjudged  a  breach  of  blockade, 
from  the  departure  of  the  vessel.  It  may  be  observed,  that 
in  these  cases  the  fact  of  sailing  is  coupled  with  the  inten- 
tion, and  the  condemnation  is  founded  on  an  actual  breach 
of  blockade. (■")  But  in  the  case  of  the  blockade  of  Mar- 
tinique and  Guadaloupe,  in  1804,  the  British  government 
sent  orders  to  its  naval  commanders  and  judges  of  the 
vice  admiralty  courts  in  the  West  Indies,  not  to  consider 
any  blockade  of  these  islands  as  existing,  unless  in  respect 
of  particular  ports  which  may  be  actually  invested,  and  then 
not  to  capture  vessels  bound  to  such  ports,  unless  they  shall 
previously  have  been  warned  not  to  enter  them.(")  The 
import  of  these  orders  is,  that  a  vessel  cannot  be  placed  in 
the  situation  of  one  having  a  notice  of  the  blockade,  until 
she  is  warned  off.  It  gives  her  a  right  to  enquire  of  the 
blockading  squadron,  if  she  has  not  previously  received 
this  warning  from  one  capable  of  giving  it,  and  consequent- 
ly, dispenses  with  her  making  that  enquiry  elsewhere. 
While  this  order  was  in  force,  a  neutral  vessel  might  law- 
fully sail  for  a  blockaded  port,  knowing  it  to  be  blockaded, 
and  being  found  sailing  towards  such  port,  would  not  con- 
stitute an  attempt  to  break  the  blockade,  until  she  should 
be  warned  ofr.(") 

The  municipal  laws  of  certain  countries  Jiave  laid  down 
very  precise  rules  for  determining  questions  of  presump- 

('")  Fltzs'immons  vs.  Newport  T113.  Comp.     4  Crninfi,  199. 

(")  Vide  Appendix,   No.  11  [. 

(°)  Marine  Ins*  Comp.  vs.  Woods.     6  Crunch,  49. 


MARITIME    CAPTURES    AND    PRIZES.  197 

tive  notice.  Thus  in  cases  of  insurance  made  on  property 
at  a  remote  distance,  lost  or  not  lost,  where  the  legality  of 
the  contract  depends  upon  the  supposition  that  no  intelli- 
gence had  been  received  of  any  accident,  at  the  time  when 
the  insurance  was  made,  they  determine  the  question  by  a 
minute  rate  of  travelling.  Thus  the  Consolato  del  Mare 
reckons  an  hour  as  a  league.  So  also  the  French  Code  de 
Commerce  reckons  an  hour  of  time  as  equivalent  to  a  league 
and  a  half  of  distance.  Art.  336.  But  it  considers  this 
rate  as  prima  facie  evidence  only,  and  does  not  exclude  a 
resort  to  other  proofs  of  the  same  fact.  Our  own  munici- 
pal law  determines  this  presumption  by  the  particular  cir- 
cumstances of  each  case,  taking  into  consideration  not 
merely  the  distance,  but  referring  also  to  the  accidents  by 
which  the  intercourse  is  likely  to  be  affected,  and  informa- 
tion conveyed  with  more  or  less  rapidity.  So  also  in  the 
law  of  blockades,  the  question  as  to  the  length  of  time  pro- 
per to  be  allowed  for  notice  is  determined  upon  equitable 
considerations.  It  is  not  to  be  taken  merely  on  a  calcula- 
tion of  the  distance  ;  but  with  reference  also  to  the  acci- 
dents by  which  the  general  intercourse,  even  after  the  al- 
lowance of  distance,  is  liable  to  he  retarded.  (P) 

Where  an  enemy's  port  was  declared  in  a  state  of  block- 
ade by  notification,  and  at  the  same  time  when  notification 
was  issued,  news  arrived  that  the  blockading  squadron  had 
been  driven  off  by  the  superior  force  of  the  enemy,  the 
blockade  was  held  to  be  null  and  defective,  from  the  begin- 
ning, in  the  main  circumstance  that  is  required  as  essen- 
tially necessary  to  give  it  legal  operation,  and  that  it  would 
be  highly  unjust  to  hold  neutral  vessels  to  the  observance 
of  a  notification,  so  accompanied  by  a  circumstance  that 
defeated  its  effect.  This  case  was,  therefore,  considered 
as  altogether  independent  of  the  presumption  arising  from 

notifications  in  other  instances ;  the  notification  being  de- 

• 

(p)  3  liobinson^  281.  The  Adelaide,    lb.  §24.  The  Hurtige  Hane, 
26 


WS  LAW   OP-  eilAP.    VI- 

feated,  it  must  have  been  shewn  that  the  actual  blockade 
was  again  resumed,  and  the  vessel  would  have  been  entit- 
led to  a  warning,  if  any  such  blockade  had  existed  when 
she  arrived  off  the  port.  The  mere  act  of  sailing  for  the 
port  under  the  dubious  state  of  the  actual  blockade  at  the 
time  was  deemed  iasufficient  to  fix  upon  the  vessel  the  pe- 
nalty of  breaking  the  blockade. (-') 

In  the  above  case,  a  question  was  raised,  whether  the  no- 
tification which  had  issued  was  not  still  operative.  But 
the  court  was  of  the  opinion,  that  it  could  not  be  so  consi- 
dered, arfd  that  a  neutral  power  was  not  obliged,  under 
such  circumstances  to  presume  the  continuance  of  a  block- 
ade,  nor  to  act  upon  a  supposition  that  the  blockade  would 
be  resumed  by  any  other  competent  force.  It  was  argued 
that  neutrals  were  bound  to  act  on  such  presumptions,  that 
when  a  blockading  squadron  is  driven  off  by  the  supei-ior 
force  of  the  enemy,  they  are  bound  to  presume  that  it  will 
return,  and  that  there  is  no  discontinuance  of  the  blockade. 
To  which  it  was  answered,  that  when  a  squadron  is  thus 
driven  off,  a  new  course  of  events  arises,  which  may  tend 
to  a  very  different  disposition  of  the  blockading  force.  In 
such  a  case,  the  neutral  merchant  is  not  bound  to  foresee 
or  to  conjecture  that  the  blockade  will  be  resumed;  and 
therefore,  if  it  is  to  be  renewed,  it  must  proceed  de  novo^ 
by  the  usual  course,  and  without  reference  to  the  former 
state  of  facts,  which  had  been  thus  effectually  interrupted. 
O^  this  principle  it  was  that  the  former  blockade  was  held 
in  the  above  case  to  have  become  extinct.  But  in  a  subse- 
qtiejit  case,  where  it  was  suggested  that  the  blockading 
squadron  had  returned  to  its  former  station  off  the  port,  in 
order  to  renew  the  blockade,  a  question  arose  whether  there 
had  been  that  notoriety  of  the  fact,  arising  from  the  opera- 
tion of  time  or  from  other  circumstances,  which  must  be 
taken  to  have  brought  the  existence  of  the  blockade  to  the 

('0  6  Robinson s  G2.    Tbc  Triheten. 


MARITIME   CAPTURES    AND    PRIZES.  l99 

knowledge  of  the  parties.  Among  other  modes  of  resolv- 
ing this  question,  a  prevailing  consideration  would  have 
been  the  length  of  time,  in  proportion  to  the  distance  of  the 
country  from  >vhich  the  vessel  sailed.  But  as  nothing  more 
came  out  in  evidence  than  that  the  squadron  appeared  off 
the  port  on  a  certain  day,  it  was  held  that  this  would  not 
restore  a  blockade  which  had  been  thus  effectually  raised, 
but  that  it  should  be  renewed  again,  by  notification,  before 
foreign  nations  could  be  affected  with  an  obligation  of  ob- 
serving it.  The  squadron  might  return  off  the  port  with 
very  different  and  new  intentions.  It  might  arrive  there 
as  a  fleet  of  observation  merely,  or  for  the  purpose  of  a 
qualified  blockade  only.  On  the  other  hand,  the  comman- 
der might  attempt  to  connect  the  two  blockades  together, 
but  this  is  what  could  not  be  done,*  and  in  order  to  revive 
the  former  blockade,  the  same  form  of  communication  must 
have  been  observed  dc  novo  that  is  nt'cossary  to  establish 
an  original  blockade.  (^) 

lo.  Besides  the  knowledge  of  the  party,  some  act  of 
violation  is  essential  to  a  breach  of  blockade,  as  either  by 
going  in  or  by  coming  out  of  the  port  with  a  cargo  laden 
after  the  commencement  of  the  blockade. T*) 

Thus  by  the  edict  of  the  States  General  of  Holland,  of 
1630,  relative  to  the  blockade  of  the  ports  of  Flanders,  it 
was  ordered,  that  the  vessels  and  goods  of  neutrals  which 
should  be  found  going  in  or  coming  out  of  the  said  ports, 
or  being  so  near  thereto  as  to  sr.cw  beyond  a  doubt  that 
they  were  endeavouring  to  run  into  them  j  or  if  fi'om  the 
documents  on  board,  it  should  appear  that  they  vrere  bound 

(0  6  Rol>iiiso7i,  112  Tlie  Hoffaung*.  ^Yhercvcr  the  question  has  arisen 
in  our  courts  cf  municipal  law  in  eases  of  insurance  cespecting  the  leg'al- 
ity  of  a  blockade,  it  has  been  determined  that  a  mere  notification,  with- 
out a  blockade  in  fact,  amounts  to  nothing'.  ^  Caincs,  11.  Williams  v. 
Smith.  Caihci'  Cases  in  Error,  T«  Voss  V.  the  United  lusur^ncCiiUom- 
pany. 

(*)  1  Sobinson,  93.    The  Betsey. 


200  LAW    OF  CHAP.  VI. 

to  the  said  ports,  although  they  should  be  found  at  a  dis- 
tance from  them,  should  be  confiscated ;  unless  they  should, 
voluntarily,  before  coming  in  sight  of  or  being  chased  by 
the  Dutch  ships  of  war,  change  their  intention,  while  the 
thing  was  yet  undone,  and  alter  their  course.  Bynker- 
shoek,  in  commenting  upon  this  part  of  the  decree,  sup- 
ports the  reasonableness  of  the  provision  which  subjects 
vessels  to  the  penalty  of  confiscation  found  so  near  to  the 
blockaded  ports  as  to  shexo  beyond  a  doubt  that  they  were 
endeavouring"  to  run  into  them^  upon  the  ground  of  legal 
presumption,  with  the  exception  of  extreme  and  well  prov- 
ed necessity  only.  Still  more  reasonable  is  the  infliction 
of  this  penalty,  where  the  intention  expressly  appears  by 
the  papers  found  on  board.  The  third  article  of  the  same 
edict  also  subjects  to  confiscation  such  vessels  and  their 
cargoes  as  should  come  out  of  said  ports,  not  having  been 
ferced  into  them  by  stress  of  weather,  although  they  should 
be  captured  at  a  distance  from  them,  unless  they  had,  after 
leaving  the  enemy's  port,  performed  their  voyage  to  a  port 
of  their  own  country,  or  to  some  other  neutral  or  free  port, 
in  which  case  they  should  be  exempt  from  condemnation ; 
but  if  in  coming  out  of  the  said  ports  of  Flanders  they 
should  be  pursued  by  the  Dutch  ships  of  war,  chased  into 
another  port,  such  as  their  own,  or  that  of  their  destination, 
and  found  on  the  high  sea  coming  out  of  such  port,  in  that 
case  they  might  be  captured  and  condemned.  Bynker- 
shoek  considers  this  provision  as  distinguishing  the  case 
of  a  vessel  having  broken  the  blockade,  and  terminated  her 
voyage  by  proceeding  voluntarily  to  her  destined  port, 
and  that  of  a  vessel  chased  and  compelled  to  take  refuge, 
which  latter  might  still  be  captured  after  leaving  the  port 
ih  which  she  had  taken  refuge.  And  in  conformity  with 
these  principles  is  the  modern  law  and  practice.(*) 

(•)  1  7ifoi(Viso?j,  154.    The  Columbia.    2  litbinstm,  12^.    Tl;ie  Welvaart 
Van  rilUw; 


MARITIME   CAPTURES    AND    PRIZES.  201 

With  respect  to  violating  a  blockade  by  coming  out  with 
a  cargo,  the  time  of  shipment  is  very  material,  lor  although 
it  might  be  hard  to  refuse  a  neutral  liberty  to  retire  with  a 
cargo  already  laden,  and  by  that  act  already  become  neutral  , 
property;  yet,  after  the  commencement  of  a  blockade,  a 
neutral  cannot  be  allowed  to  interpose  in  any  way  to  assist 
the  exportation  of  the  property  of  the  enemy.  After  the 
commencement  of  a  blockade,  a  neutral  is  no  longer  at  li- 
berty to  make  any  purchase  in  that  port.(")  A  neutral  ship 
departing,  can  only  take  away  a  cargo  bonajide  purchased 
and  delivered  before  the  commencement  of  the  blockade  ; 
if  she  afterwards  take  on  board  a  cargo,  it  is  a  violation  of 
the  blockade.  But  where  a  ship  was  transferred  from  one 
neutral  merchant  to  another  in  a  blockaded  port,  and  sailed 
out  in  ballast,  she  was  determined  not  to  have  violated  the 
blockade. (*)  So  where  goods  were  sent  into  the  block- 
aded port  before  the  commencement  of  the  blockade,  but 
reshipped  by  order  of  the  neutral  proprietor,  as  found  un- 
saleable, during  the  blockade,  they  were  held  entitled  to 
restitution.  For  the  same  rule  which  permits  neutrals  to 
withdraw  their  vessels  from  a  blockaded  port,  extends  also, 
with  equal  justice,  to  merchandize  sent  in  before  the  block- 
ade, and  withdrawn  bonajide  by  the  neutral  propfietor.('') 
Where  a  ship  which  had  been  purchased  by  a  neutral  of 
the  enemy  in  a  blockaded  port,  and  sailed  on  a  voyage  to 
the  neutral  country,  had  been  driven  by  stress  of  weather 
into  a  port  of  the  belligereilt  state,  where  she  was  seized, 
she  was  held  liable  to  condemnation  under  the  general  rule. 
That  the  vessel  had  been  purchased  out  of  the  proceeds  of 
the  cargo  of  another  vessel,  was  considered  as  an  unavail- 
able circumstance  on  a  question  of  blockade.  If  the  ship 
has  bicn  purchased  in  a  blockaded  port,  that  alone  is  the 

(0)  lRobinim,9*.    The  Betsey. 

(v)  1  Jiobinson,  ISO.    The  Vrouw  Judith- 

C'')  4  Etiiman,  8?,    The  Potsdam, 


'h 


^6i 


LAAV    OF  CHAP.  TI. 


illegal  act,  and  It  is  perfectly  immaterial  out  of  what  funds 
the  purchase  was  effected.  Another  distinction  taken  was, 
that  the  vessel  had  terminated  her  voyage,  and  therefore 
that  the  penalty  would  no  longer  attach.  But  this  was  also 
overruled,  because  tlie  port  into  which  she  had  been  driven 
was  not  represented  as  forming  any  part  of  her  original 
destination.  It  was  .therefore  impossible  to  consider  this 
accident  as  any  discontinuance  of  the  voyage,  or  as  a  de- 
feasance of  the  penalty  which  has  been  incurred. (^) 

And  where  the  vessel  was  captured  on  a  voyage  to  the 
blockaded  port,  in  ballast,  she  having  sailed  for  the  purpose 
of  bringing  away  goods  which  had  become  the  property  of 
merchants  in  the  neutral  country  before  the  date  of  the 
blockade,  she  was  held  liable  to  condemnation.  The  rule 
of  blockade  permits  an  egress  io  ships  innocently  in  the 
port  before  the  restriction  was  imposed,  and  even  with  car- 
goes, if  previously  laden  ;  but  in  the  case  of  ingress^  there 
is  not  the  same  reason  for  indulgence,  tliere  can  be  no  sur- 
prize upon  the  parties,  and  therefore  nothing  short  of  a 
physical  necessity  is  admitted  as  an  adequate  excuse  for 
making  the  attempt  of  entry.  Generally  where  a  neutral 
ship  is  proceeding  to  a  blockaded  port,  it  must  be  sup- 
posed that  she  is  going  there  for  the  purposes  of  trade. — 
If  she  goes  in  ballast,  it  cannot  be  with  the  intention  "of 
being  laid  up  for  an  indefinite  time,  in  a  foreign  port,  until 
the  blockade  is  raised.  It  is  a  presumption  'which  a  court 
of  prize,  acting  on  reasonable  principles,  is  bound  to  enter- 
tain and  apply,  that  she  has  no  other  errand  there  than  to 
keep  ^^e  that  commeVcial  intercourse  with  the  interdict- 
ed poiT  which  it  is  the  object  of  the  blockade  to  prevent.(y) 

A  maritime  blockade  is  not  violated  by  sending  goods  to 
the  blockaded  port,  or  by  bringing  them  from  the  same, 
through  the   interior  canal  navigation  or  land  carriage  of 

(«)  4'Ji(jbiii:on.     In  J^'utin.    Tiic  Juir.ow  INIarla  Shrartler. 
'>,/  ()  ii-Mmdu,  Ql.    The  General  Ilnmilton. 


MARITIME    CAPTURES    AND    rr.TZr,^.  203 

the  countiy.  A  blockade  may  be  of  dilTerent  descriptions. 
A  mere  maritime  blockade,  effected  by  a  force  operating 
pnly  at  sea,  can  have  no  operationOpon  the  interior  com- 
munications of  the  port.  The  legal  blockade  can  extend 
no  farther  than  the  actual  blockade  can  be  applied.  If  the 
place  be  not  invested  on  the  land  side,  its  interior  commu- 
nications with  other  ports  cannot  be  cut  off.  If  the  block- 
ade be  rendered  imperfect  by  this  rule  of  construction,  it 
must  be  ascribed  to  the  physical  impossibility  of  the  mea- 
sure, by  whidi  the  extent  of  its  legal  pretension-s  is  una- 
voidably limited. (^)  But  goods  shipped  in  a  river,  having 
been  previously  sept  in  lighters  along  the  coast  from  the 
blockaded  port,  and  under  charter  party  with  the  ship  pro- 
ceeding also  from  the  blockaded  port  in  ballast  to  take  them 
on  board,  were  held  liable  to  confiscation.  This  case  i3 
very  different  from  those  above  mentioned,  because  tliere 
the  communication  had  been  by  inland  navigation,  which 
was  in  no  manner,  and  in  no  part  of  it,  subject  to  the 
blockade.  (•') 

6.  The  appropriate  penalty  for  a  breach  of  blockade  is 
the  confiscation  of  the  vessel  and  cargo.('^)  But  where  the 
owners  of  the  cargo  are  not  at  the  same  time  owners  of  the 
vessel,  the  confiscation  cannot  be  extended  to  the  cargo, 
unless  its  owners  were,  or  might  have  been,  conusant  of  the 
blockade,  before  they  shipped  their  goods.  Although  the 
master  is  the  agent  of  the  owners  of  the  vessel,  and  can 
bind  him  by  his  contracts  or  misconduct,  he  is  not  the 
agent  of  the  owners  of  the  cargo,  unless  expressly  so  consti- 
tuted by  thein.  In  cases  of  insurance,  and  in  revenue  cases, 
where  by  the  municipal  law,  the  act  of  the  master  will  affect 
the  cargo,  it  is  to  be  observed  that  the  ground  upon  which 
they  stand  is  wholly  different.     In   the  former  it  is  in  vii- 

{')  1  Edwards,  S2:    The  Comet. 

(')  o  Robinson, 207.     The  Ocean.     ^  Robinson,(^ci.     The  Slert. 

(")  Btjnl€rshoek,  2.3.  P.  L.  1.  c.  11. 


'204  N  LAW   OP  GUAP.  VI. 

tue  of  an  express  contract  which  governs  the  whole  case  ; 
and  in  revenue  cases  it  proceeds  from  positive  laws  and  the 
necessary  strictness  of  all  fiscal  regulations.^^)  And  where 
goods  are  shipped  in  pursuance  of  orders  from  a  distant 
country,  if  it  appears  that  they  were  given  after  the  time, 
when  the  notification  of  blockade  could  by  a  fair  possibility 
be  supposed  to  have  been  known  to  a  person  giving  the  or- 
ders, he  would  be  bound  directly  by  his  own  act;  or,  if  the 
orders  were  sent  previous  to  the  notification,  two  questions 
might  arise;  1st,  whether  sufficient  time  had  intervened 
since  the  notification,  to  have  given  him  an  opportunity  of 
counter-ordering  the  shipment ;  for  if  so,  he  would  be  le- 
gally answerable  for  the  consequences  of  his  own  negli- 
gence ;  or,  3dly,  if  sufficient  time  had  not  intervened,  whe- 
ther, though  personally  free  from  all  imputation  of  offence, 
he  might  not  be  bound  by  that  powerful  general  principle 
of  the  municipal  law,  which  holds  the  employer  responsible 
for  the  acts  of  his  agent,  and  thus  be  held  by  those  of  the 
shipping  merchant  in  the  blockaded  port.  It  would  perhaps 
be  holding  the  party  too  rigorously  to  the  strict  principle 
of  the  law,  to  say,  that  it  is  his  duty  to  write  even  with  a 
hope,  and  under  the  chance  of  countermanding  the  order 
zji  tbne,  because,  in  some  cases,  the  party  might  naturally 
conceive  from  the  time  which  had  elapsed,  that  the  order 
had  been  already  executed,  and  that  if  he  had  written  to 
countermand  it,  the  letter  would  not  be  received  till  the 
shipment  had  been  actually  made.  The  abstract  rule  as  to 
the  principal  being  bound  by  the  acts  of  his  agent  is  un- 
doubtedly just ;  but  the  agents  of  foreign  merchants  in  the 
enemy*s  country,  and  in  a  blockaded  port,  do  not  stand  iu 
the  same  situation  as  other  agents;  they  have  not  only  a 
distinct,  but  even  an  opposite  interest  from  that  of  their 
principals,  to  fulfil  the  commission  at  all  risks  as  rapidly  as 

C/)  1  RobiniQHy  80.    The  Mcrcurius.    lb.  154.    The  Columbia. 


MARITIME    CAFTtJRES    AND    PRIZES..  205 

possible,  for  their  own  private  advantage,  and  for  the  pub= 
lie  interest  of  their  country,  which  at  such  a  time  must  be 
under  particuhu-  pressure  as  to  the  exportation  of  its  pro- 
duce-C^) 

If  it  be  objected,  that  to  exempt  the  cargo  from  respon- 
sibility for  the  acts  of  the  master  will  open  the  door  to 
fraud,  in  allowing  neutrals  to  trade  to  blockaded  ports  with 
impunity,  by  throwing  the  blame  upon  the  carrier  mastery 
it  is  answered,  that  if  such  an  artifice  could  be  proved,  it 
would  establish  the  lyiens  rea  in  the  neutral  merchaiit  which 
would  expose  his  property  to  confiscation,  and  it  would  at 
the  same  time  be  sufficient  to  cause  the  master  to  be  consi- 
dered in  the  character  of  agent,  as  weli  for  the  c?rgo  as  for 
the  ship.  Thus  where  a  ship  had  been  condemned  for  de- 
viating into  a  blockaded  port.  Under  the  fraudulent  pre- 
tence of  being  in  want  of  provisions,  the  cargo  was  like- 
wise included  in  the  condemnation,  the  inference  being  that 
she  was  going  in  with  an  intention  of  disposing  of  the  car- 
go. It  would  be  impossible  to  maintain  blocka:des  which 
are  directed  more  against  the  cargo,  than  against  ships,  if  a 
court  of  prize  did  not  draw  the  inference,  that  a  ship  going 
in  fraudulently,  is  going  in  the  service  of  the  cargo,  with  the 
knowledge,  and  by  the  direction  of  the  owner.  If  any  in- 
convenience arise  to  the  owners  of  the  cargo,  from  this  ne- 
cessary conclusion,  the  owners  of  the  vessel  or  the  master, 
are  the  persons  to  whom  they  must  look  for  indemnifica- 
tion. («)  And  where  also  the  Vessel  had  been  condemned 
for  a  fraudulent  deviation  under  the  pretence  of  a  mistake 
in  navigation,  it  was  inferred  that  the  deviation  had  been 
resorted  to  in  the  service  of  the  cargo.  It  was  held  that 
in  other  blockade  cases,  where  excuses  had  been  set  up  for 
want  of  water  and  provisions,  or  from  other  occa;sionSj  andi 

(d)  3  liobinson,  172.    The  Neptunus. 
C)  1  Robinson,  85.    The  Mercuriuss 


206  LAW    OF  CHAP.    VI. 

these,  excuses  had  been  pronounced  to  be  not  real,  a  pre- 
sumption necessarily  arose  that  it  was  for  the  delivery  of 
the  cargo  that  such  a  fraud  had  been  attempted ;  since  there 
is  scarcely  any  other  adequate  motive  which  can  be  sup- 
posed to  induce  a  master  to  hazard  the  interests  of  his  ves- 
sel ;  the  motives  assigned  being  demonstrated  to'be  false. 
There  is  a  presumption  also  in  such  cases,  that  this  is  done 
with  the  knowledge,  and  at  the  instigation,  of  the  owner  of 
the  cargo;  because  although  it  is  not  an  impossible  thing 
that  masters  may  be  guilty  of  barratry,  it  is  not  a  natural 
conduct,  nor  what  is  gratuitously  to  be  supposed.  The  on- 
ly question,  therefore,  must  be  as  to  the  effect  of  the  pre- 
sumption arising  from  these  inferences,  whether  it  shall 
exclude  all  contrary  averment,  or  whether  it  shall  operate 
only  as  matter  of  evidence,  in  concurrence  with  other 
proof  as  to  the  guilt  of  the  intention.  It  must  undoubted- 
ly *^in  J  the  owner;  but  the  question  is  whether  it  shall 
do  so  presumptively i  or  conclusively  ;  and  whether  the  par- 
ty shall  be  let  in  to  prove  a  contrary  intention.  And  al- 
though the  fact  may  exist  that  a  master  should  commit  a 
barratry  in  a  case  of  this  kind,  yet  the  owner  cannot  be  ad- 
mitted to  go  into  proof  on  this  point,  on  account  of  the  frau- 
dulent abuse  to  which  such  a  liberty  must  inevitably  lead, 
since  it  would  be  perfectly  easy  at  •  any  time,  to  set  up  the 
pretence,  and  equally  impossible  on  the  other  side,  to  de- 
tect it.  For  what  would  be  the  ordinary  test  ?  Letters 
sent  to  correspondents  elsewhere,  and  insurances — mea^ 
sures  wholly  in  the  power  of  the  parties,  and  capable  of  be- 
ing made  at  their  pleasure,  a  complete  recipe  for  a  safe  traf- 
fic with  a  blockaded  port.  When  this  consc  quence  is  duly 
weighed  on  one  side,  and  when  it  is  considered  on  the 
other,  what  few  inducements  a  master  can  have  to  go  to 
any  other  port  than  that,  at  which  his  charter  parly  binds 
him  to  deliver  his  cargo,  and  particularly  to  a  blockaded 
port,  less  injustice  will  lie  done  by  adopting  this  rule  than 
by  permitting  the  freighter  to  distinguish,  by  external  and 


'     MARITIME    CAPTURES    AND    PRIZES.  207 

collateral  evidence,  the  destination  of  his  cargo  from  that  of 
the  master.  The  master  is  not  the  representative  of  the 
owner  of  the  cargo  to  that  extent,  and  in  the  same  direct 
manner,  in  which  he  is  held  to  be  the  representative  of  the 
owner  of  the  ship.  On  that  account,  where  facts  shew 
the  intention  of  the  owner  to  be  pure,  the  benefit  of  this 
distinction  is  given  to  the  party ;  for  instance,  where  the 
voyage  begins  before  the  knowledge  of  the  blockade,  and 
where  the  master  on  being  warned,  appears  to  be  actuated 
only  by  a  personal  obstinacy  and  perverseness,  in  pursu- 
.ing  his  course  to  his  place  of  original  destination.  That 
is  a  case  where  the  intention  of  the  owner  is  admitted  to 
be  pure,  where  nothing  s-tands  against  it  in  limine^  where 
there  is  no  question  of  fact,  whether  he  was  consentient  to 
the  fraud;  and  where,  if  he  was  affected  at  all,  it  could 
only  be  by  the  application  of  the  strict  legal  principle,  that 
affects  the  principal  by  the  conduct  of  his  agent.  But 
where  the  blockade  was  known  to  all,  the  parties  at  the 
time  of  shipment,  and  therefore  the  question  is  raised, 
whether  the  owner  was  not  consentient  at  first,  and 
whether  the  conduct  of  the  master  is  not  demonstrative  ev- 
idence that  he  was  so,  the  effect  of  all  just  presumption  is 
against  the  owner;  since  there  is  scarcely  any  inducement 
to  lead  the  master  to  commit  such  a  fraud,  contrary  to  the 
instructions  and  intentions  of  the  owner  of  the  cargo.  Up- 
on these  grounds  the  cargo  in  the  above  case  v/as  involved 
in  the  condemnation  of  the  ship.  (^) 

Where  the  blockade  has  been  raised  between  the  time 
of  sailing  and  the  capture,  the  penalty  does  not  attach ;  be- 
cause the  blockade  being  gone,  the  necessity  of  applying  the 
penalty  to  prevent  future  transgression  no  longer  exists. 
The  offence  incurred  by  a  breach  of  blockade  generally  re- 
mains during  the  voyage.  But  ttiat  must  be  understood 
as  subject  to    the  condition,  that  the   blockade  itself  con- 

V)  4:  Eobinsony93.    TaeAIexand«^    lF.'U-i''iU,'\9,    The  Exchange. 

■\ 


^8  LAW  o*  CHAP.  VI. 

tanues.  When  the  blockade  is  raised,  a  veil  is  thrown  over 
every  thing  that  has  been  done,  and  the  vessel  is  no  longer 
taken  in  delicto.  The  del:ctum  may  have  been  completed  at 
one  period,  but  it  is  by  subsequent  events  entirel}'  dope 
away.  (^  J 

(s)  6  Robinson^  387.     The  Lisette 


i'^ii.BITIME    CAPTv^JTES    AND    PHIZES-  SJOO 


CHAPTER  VII. 

Of  the  proper tij  of  subjects  of  the  belli (rerent  state,  or  its 
allies,  engaged  in  trade  with  the  enemy,  or  of  subjects 
taken  in  violation  of  a  municipal  laic,  considered  as  an 
object  pf  capture. 

1.  In  a  state  of  war  between  two  nations,  declared  by 
the  authority  in  whom  the  municipal  constitution  vests  the 
power  of  making  war,  the  two  nations,  and  all  their  citi- 
zens or  subjects,  are  enemies  of  each  other.  The  conse- 
quence of  this  state  of  hostility  is,  that  all  intercourse  and 
communication  bet\yeen  them  is  unlawful. 

This  principle  of  public  law  forms  a  part  of  the  munici- 
pal jurisprudence  of  every  country. 

2.  Thus  in  England,  there  exists  a  general  rule  in  the 
maritime  jurisprudence  of  that  country,  by  which  all  trad- 
ing with  the  public  eneniy,  unless  with  the  permission  of 
the  sovereign,  is  interdicted.  It  is  not  a  principle  peculiar 
to  the  maritime  law  of  England ;  it  is  laid  down  by  Byn- 
kershoek  as  an  universal  principle  of  law — £x  natiira  belli 
commercia  inter  hostes  cessare  non  est  dubitandum,  ^am- 
vis  nidla  specialis  sit  commercioriim  prohibition  ipso  tamen 
jure  belli  commercia  esse  vetita^  ipsa  hidictioties  bellorum 
satis  declarant^  &c.  He  proceeds  to  observe  that  the  inte- 
rests of  trade,  and  the  necessity  of  obtaining  certain  com- 
modities, have  sometimes  so  far  overpowered  this  rule, 
that  different  species  of  traffic  have  been  permitted,  prout 
€  re  sua^  subditx)rumqiie  suorum  -esse  censent  principes. 
But  it  is  in  all  cases  the  act  and  permission  of  the  sove- 
reign.    Wherever  that  is  permitted,  it  is  a  suspension  of 


210  LAW   OF  .      CHAP.  VII« 

the  state  of  war  quo  ad  hoc.  It  is,  as  he  expresses  it,  pro 
parte  sic  bcllum,  pro  parte  pax  inter  subd'itos  utr'msque priu' 
cipis.('^)  It  appears  from  these  passages  to  have  been  the 
law  of  Holland;  Valin  states  it  to  have  been  the  law  of 
France,  whether  the  trade  was  attempted  to  be  carried  on 
in  national  (^)  or  in  neutral  vessels  :('^)  and  it  appears  from 
the  case* cited,  to  have  been  the  law  of  Spain;  and  it  may 
without  rashness  be  affirmed  to  be  a  general  principle  of 
law  in  most  of  the  countries  of  Europe. 

By  the  law  and  constitution  of  Great  Britain,  the  sove- 
reign alone  has  the  power  of  declaring  war  and  peace — He 
alone  therefore,  who  has  the  power  of  entirely  removing  the 
state  of  war,  has  the  power  of  removing  it  in  part,  by  per- 
mitting, where  he  sees  proper,  that  commercial  intercourse 
which  is  a  partial  suspension  of  the  war.  There  may  be 
occasions  on  which  such  an  intercourse  may  be  highly  ex- 
pedient. But  it  is  not  for  individuals  to  determine  on  the 
expediency  of  such  occasions  on  their  own  notions  of  com- 
merce merely,  and  possibly  on  grounds  of  private  advan- 
tage not  very  reconcilable  with  the  general  interest  of  the 
state.  It  is  for  the  state  alone,  on  more  enlarged  views  of 
policy,  and  of  all  circumstances  that  maybe  connected  with 
such  an  intercourse,  to  determine  when  it  shall  be  permitted, 
and  under  what  regulations.  No  principle  ought  to  be  held 
more  sacred  than  that,  this  intercourse  cannot  subsist  on  any 
othei-  footing  than  that  of  the  cnrect  permission  of  the  state. 
Who  can  be  insensible  to  the  consequences  that  might  fol- 
low, if  every  person  in  time  of  war  had  a  right  to  carry  on 
a  commercial  intercourse  with  the  enemy,  and  under  colour 
of  that,  had  the  means  of  carrying  on  any  other  species  of 
intercourse  he  might  think  fit  ?    The  inconvenience  to  the 

(h)  q.  j.  p.  l.  1.  c.  3. 

(")  The  Tortuna,  cited  in  the  Hoop. 

('^)  Stir  V Ordontumce,  L.  G,  tit.  6.  art  3. 


MARITIME    CAPTURES    AND    PRIZES'.  211 

public  might  be  extreme ;  and  where  is  the  inconvenience 
on  the  other  side,  that  the  merchant  should  be  compelled  in 
such  a  situation  of  the  two  countries,  to  carry  on  his  trade 
between  theAi,  (if  necessary)  under  the  eye  and  control  of 
the  government  charged  with  the  care  of  the  public  safety  ? 
Another  principle  of  law,  of  a  less  poliiic  nature,  but 
equally  general  in  its  reception  and  direct  in  its  application, 
forbids  this  sort  of  communication  as  fundamentally  incon- 
sistent with  the  relation  existing  between  the  two  coun- 
tries ;  and  that  is,  the  total  inability  to  sustain  any  contract 
by  an  appeal  to  the  tribunals  of  the  one  country,  on  the 
part  of  the  subjects  of  the  other.  In  the  law  of  almost 
every  country,  the  character  of  alien  enemy  carries  with  it 
a  disability  to  sue,  or  to  sustain,  in  the  language  of  the  ci- 
vilians a  persona  standi  in  Judicio,  The  peculiar  law  of 
England  applies  this  principle  with  great  rigour.  The  same 
principle  is  received  in  its  courts  of  the  law  of  nations ; 
they  are  so  far  British  courts,  that  no  man  can  sue  therein 
who  is  a  subject  of  the  enemy,  unless  under  particular  cir- 
cumstances that  pro  hoc  vice  discharge  him  from  the  cha- 
racter of  an  enemy;  such  as  his  coming  under  a  flag  of 
truce,  a  cartel,  a  pass,  or  some  other  act  of  public  authori- 
ty that  puts  him  in  the  king's  peace  pro  hdc  vice.  But 
otherwise  he  is  totally  ex  lex  ;  even  in  the  case  of  racsoms 
which  were  contracts,  but  contracts  arising  ex  jure  belU^ 
and  tolerated  as  such,  the  enemy  was  not  permitted  to  sue 
in  his  own  proper  person  for  the  payment  of  the  ransom 
bill;  but  the  payment  was  enforced  by  an  action  brought 
by  the  imprisoned  hostage  in  the  courts  of  his  own  coun- 
try, for  the  recovery  of  his  freedom.  A  state  in  whitli 
contracts  cannot  be  enforced,  cannot  be  a  state*  of  legal  com- 
merce. If  the  parties  who  are  to  contract  have  no  right 
to  compel  the  performance  of  the  contract,  nor  even  to  ap- 
pear in  a  court  of  justice  for  that  purpose,  can  there  be  a 
stronger  proof  that  the  law  imposes  a  legal  inability  to 
•"ontract  ?  To  such  transactions  it  givus  no  sanction ;  the}' 


Si'i  LAW  oi  c;hap.  vii. 

have  no  legal  existence  ;  and  che  whole  of  such  commerce 
is  attempted  without  its  protection  and  iigainsi  its  authori- 
ty. Bynkersho^k  expresses  himself  with  great  force  upon 
this  argument  in  his  first  book,  chapter  7,  w-fiere  he  lay^i 
down  that  the  legality  of  commerce,  and  the  mutual  use  of 
courts  of  justice  are  inseparable :  he  says,  that  cases  of 
commerce  are  undistinguishable  from  cases  of  any  other 
species  in  this  respect — Si  hosii  semcl  ])ermittas  actiones 
cxercere,  cU^icUe  est.  clistinguere  ex  qua  causa  or'iantur^  nee 
potui  animddvertere  illam  distinctlonem  lotqitam  usii  fidssef 
servatam. 

Upon  these  and  similar  grounds  it  h^s  been  the  estab- 
lished rule  of  the  high  court  of  admiralty  in  England,  con- 
firmed by  the  judgment  of  the  supreme  court,  that  a  trading 
with  the  enemy,  except  under  a  royal  license,  subjects  the 
property  to  confiscation  : — ^and  the  most  eminent  persons 
of  the  law  sitting  in  the  supreme  court  have  uniformly  sus- 
tained such  judgments. 

Their  decisions  prove  that  the  rule  has  been  figidly  en- 
forced :—where  acts  of  parliament  have  on  different  occa- 
sions been  made  to  relax  the  navigation  law  and  other  re- 
venue acts;  where  the  government  has  authorised,  under 
the  sanction  of  an  act  of  parliament,  a  homeward  trade 
from  the  fenemy's  possessions,  but  has  not  specifically  pro- 
tected an  outward  trade  to  the  same,  though  intimately  con- 
nected with  that  homeward  trade,  and  almost  necessary  to 
its  existence;  that  it  has  been  enforced,  where  strong 
claims,  not  merely  of  convenience,  but  of  necessity  excused 
it  on  the  part  of  the  individual ;  that  it  has  been  enforced 
where  cargoes  have  been  laden  before  the  war,  but  where 
the  |)ariits  have  not  used  all  possible  diligence  to  counter- 
mand the  voyage  after  the  first  notice  of  hostilities ;  and 
that  it  has  been  enforced,  not  only  against  the  subjects  of 
the  crown,  but  likewise  against  those  of  its  allies  in  the 
war,  upon  the  supposition  tliat  the  rule  was  founded  on  a 
strong  uud  universal  principle,  which  states  a,llied  in  war 


MARITIME    CAPTURES    AND    PRIZES.  213 

Iiad  a  right  to  notice  djid  apply  mutually  to  each  other's  sub- 
jects.(<i) 

And  such  has  been  immemorially  the  English  maritime 
law  :  for  trading  with  the  enemy  is  laid  down  in  the  black 
book  of  the  admiralty,  as  an  offence  enquirable  in  the  court 
'of  admiralty,  Sozt  enquis  de  eculx  qui  entre  coMMtJNENT, 
z-t-jident^  oil  achatent  dvec  aucun  des  Ennemys  de  nostre 
seigneur  le  Roy  sans  license  especiakydu  Roy  ou  de  son  ad- 
7jiiraL{^^) 

It  is  also  expressly  laid  down  by  Lord  Mansfield,  that 
such  is  the  maritime  law  of  England  ;(*^)  and  he  who  for  so 
long  a  time  assisted  at  the  decisions  of  the  supreme  court 
of  prize,  and  at  that  period,  could  hardly  have  been  igno- 
rant of  the  rule  of  decision  on  this  important  subject.  What 
is  meant  by  the  addition,  but  this  does  not  extend  to  a  iieU" 
tral  vessel^  it  is  extremely  difficult  to  conjecture,  because 
no  man  was  moi'e  perfectly  apprised  that  the  neutral  bot- 
tom gives,  in  no  case,  any  sort  of  protection  to  a  cargo  that 
is  otherwise  liable  to  confiscation  ;  and  therefore  it  cannot 
but  be  concluded,  that  the  words  of  that  great  person  must 
have  been  receivejd  w;ith  some  slight  degree  of  misappre- 
hension.(^)      -  '  . 

3.  As  to  the  common  law  of  England,  it  is  difficult  to 
conceive  that  it  can  bj  any  possibility  be  otherwise ;  for 
the  rule  in  no  degree  arises  from  the  transaction  being  on 
the  water,  but  from  principles  of  public  policy  and  of  pub- 
lic law, which  are  just  as  weighty  on  the  one  element  as  on 
the  other,  and  of  which  the  cases  have  happened  more  fre- 
quently upon  the  water,  merely  in  consequence  of  the  in- 
sular situation  of  the  country.  But  when  an  enemy  exist- 
ed in  the, other:  part  of  the  island,  (the  only  instance  in 

(•i)  1  liobiKson,  196^.   The  Hoop. 
(j<=)  Rou^hi,  art.  3.  and  note  tq^f!icrk'.s  Prax,  105 
(f)  1  T.  R.  85.  Gist  V,  Mason.  ' 
(-8)  1  BobinsQtt,  196,    Tlie  IIoop.   , 
■    2« 


214  LAW  OF  CHAP,  Trr. 

which  it  would  occur  upon  the  land)  it  appears  from  the 
case  referred  to  by  that  person,  to  have  been  deemed 
equally  criminal  in  the  jurisprudence  of  the  country. C') 
And  the  modern  law,  though  it  apparently  fluctuated  for  a 
while,  was  at  last  definitively  settled  on  the  same  basis, 
in  a  case  where  a  British  subject  shipped  from  the  enemy's 
country>  on  board  a  neutral  vessel,  goods  which  he  had  pur- 
chased of  the  enemy  during  hostilities,  and  it  was  adjudged 
that  an  insurance  upon  the  cargo  was  illegal  and  void.(') 

Such  are  the  general  principles  of  the  rule  under  which 
the  public  laW  of  Europe,  and  the  municipal  law  of  its  dif- 
ferent states,  have  interdicted  all  commerce  with  an  enemy. 
It  is  thus  sanctioned  by  the  double  authority  of  public  and 
of  private  jurisprudence,  and  is  founded  both  upon  the  sound 
and  salutary  j^rinciple  forbidding  all  intercourse  vr'ith  an 
enemy,  unless  by  permission  of  the  sovereign  or  state,  and 
upon  the  doctrine  that  he  Who  is  host'is^ — who  has  no  per- 
sona standi  in  pidicio^  no  means  of  enforcing  contracts,  can- 
not make  contracts  unless  by  such  permission. 

4.  This  rule  has  also  been  adopted  and  enforced  in  the 
courts  of  the  United  States. 

Thus  where  the  claimant,  a  citizen  of  the  United  States^ 
had  purchased  a  quantity  of  goods  in  the  enemy'is  country 
a  long  time  before  the  declaration  of  the  late  war  against 
Great  Britain,  and  had  deposited  them  on  an  island  near 
to  the  boundary  line  between  the  two  countries,  upon  the 
breaki'ig  out  of  hostilities,  liis  agents  had  hired  the  vessel 
to  proceed  to  the  place  of- deposit  and  bring  away  these 
goods  ;  on  her  return,  she  was  captured,  and  with  the  car- 
go condemned  as  pi'ize  of  warj  for  trading  with  the  ene- 
my. On  the  argument  in  this  case  it  was  contended  for 
the  claimant,  that  ihis  was  not  a  trading  v^ithin  the  meaning 
of  the  cases  cited  to  support  the  condemnation  ;  that,  o» 

Q')  I  RMc\  JbridirmeiitA7o. 

(')  8  T.  K,  549,    rolls  V,  13cU,  in  error. 


MARITIME    CAPTURES    AND    PRIZES.  S15 

ihe  breaking  out  of  war,  every  crizen  had  a  right,  and  it 
was  the  interest  of  the  community  to  permit  its  citizens, 
to  withdraw  property  lying  in  an  enemy's  country,  and 
purchased  before  the  war.  But  the  court  determined,  that 
whatever  relaxation  of  the  strict  rights  of  war,  the  more 
mitigated  and  mild  practice  of  modern  times  might  have 
established,  there  had  been  none  on  this  subject.  The  vmi- 
vcrsal  sense  of  nations  had  acknowledged  the  demoralizing 
effects  which  would  result  from  'he  admission  of  individual 
intercourse  between  the  states  at  war.  The  whole  nation 
are  embarked  in  one  common  bottom,  and  must  be  recon- 
ciled to  one  common  fate.  Every  individual  of  the  one 
nation  must  acknowledge  every  individual  of  the  other  na=" 
tion  as  his  own  enemy,  because  he  is  the  enemy  of  his 
country.  This  being  the  duty  of  the  citizen,  what  is  the 
consequence  of  a  breach  of  that  duty  ? — The  law  of  prize  is 
a  part  of  the  law  of  nations.  By  it,  a  hostile  character  is 
attached  to  trade,  independent  of  the  character  of  the  trader 
v.'ho  pursues  or  directs  it.  Condemnation  to  the  captor  is 
equally  the  fate  of  the  property  of  the  enemy  and  of  pro- 
perty found  engaged  in  an  anti-neutral  trade.  But  a  citi- 
zen or  ally  may  be  engaged  in  a  hostile  trade,  and  thereby 
involve  his  property  in  the  fate  of  those  in  whose  cause  he 
embarks.  This  liability  of  the  property  of  a  citizen  to  con- 
demnation as  prize  of  war,  may  likewise  be  accounted  for 
on  other  considerations.  Every  thing  that  issues  from  a 
hostile  country  is^  prima  facie,  the  property  of  the  enemy  | 
and  it  is  incumbent  upon  the  claimant  to  support  the  nega- 
tive of  the  proposition.  But  if  the  claimant  be  a  citizen  or 
an  ally,  at  the  same  time  that  he  makes  out  his  interest  he 
confesses  the  commission  of  an  offence  which,  under  a  well 
known  rule  of  the  municipal  law,  deprives  him  of  his  right 
to  prosecute  his  claim.  Nor  does  this  doctrine  rest  upon 
abstract  reasoning  only.  It  is  supported  by  the  practice  of 
the  most  enlightened  (perhaps  we  may  say  of  all)  commer= 
cial  cations.     And  it  afforded  the  court  full  confidence  in 


216,      '*  LAW    OF  CHAP.  VII. 

their  decision  in  this  cascj  that  they  found,  upon  recurring 
to  the  records  of  the  court  of  appeals  in  prize  causes,  estab- 
lished during  the  war  of  the  revolution,  that  in  various 
cases  it  was  reasoned  upon  as  the  acknowledged  law  of 
that  court.  Certain  it  is,  that  it  was  the  law  of  England 
before  the  American  revolution,  and  therefore  forms  a  part 
of  the  admiralty  and  maritime  jurisdiction  conferred  on  the 
courts  of  the  United  States  by  their  constitution.  Whether 
the  trading  in  this  case  was  such  as,  in  the  eye  of  the  prize 
law,  subjects  the  property  to  capture  and  condemnation, 
depends  on  the  legal  force  of  the  term.  If  by  tradings  in 
the  luw  of  prize,  were  meant  that  signilication  of  the  term, 
which  consists  in  negotiation  or  contract,  this  case  would 
,certainly  not  come  under  the  penalty  of  the  rule.  But  the 
object,  policy,  and  spirit  of  the  rule  is  to  cut  off  all  commu- 
nication, or  actual  locomdtive  intercourse  between  indivi- 
duals of  the  states  at  war.  Negotiation  or  contract  has 
therefore  no  necessary  connexion  with  the  offence.  Inter- 
course^ inconsistent  with  actual  hostility^  is  the  offence 
against  which  the  operation  of  the  mle  is  directed  :  And  by 
substituting  this  term  for  that  oi  trading  with  the'enemy^  an 
answer  is  given  to  the  argument,  that  this  is  not  a  trading 
within  the  meaning  of  the  cases  cited.  Whether,  on  the 
breaking  out  of  War,  the  citizen  ,has  a  right  to  remove  to  his 
own  countrj^  with  his  property,  or  not;  the  claimant,  cer- 
tainly, had  not  a  right  to  leave  his  own  country  for  the  pur- 
pose of  bringing  home  his  property  from  an  enemy  coun- 
try. As  to  th.e  claim  for  the  vessel,  it  was  held  to  be 
founded  upon  no  pretext  whatever;  for  the  undertaking 
was  altogether  voluntJiry  and  inexcusable-C^) 

So  where  hostilities  had  broken  out,  and  the  vessel  in 
quer^tion,  with  a  full  knowledge  of  the  war,  and  unpressed 
by  any  peculiar  danger,  changed  her  coui-se  and  sought  an 

C*)  Per  .loHNsox,  J,  The  Rapid.    Supreme  Court  of  the  U,  S,   Tebru- 
■^ty  T.  1814.  M.  S. 


MARITIME    CAPTURES    AND    PRIZES.  7^'^'^r     217 

enemy's  port,  where  she  traded  and  took  in  a  cargo,  it  was 
determined  to  be  a  cause  of  confiscation.  If  such  an  act 
could  be  justified,  it  were  vain  to  prohibit  trade  with  the 
enemy.  The  subsequent  traffic  in  the  enemy's  country,  by 
which  her  return  cargo  was  obtairted,  connected  itself  with 
the  voluntary  sailing  for  a  hostile  port :  nor  does  the  cir- 
cumstance that  she  was  carried  by  force  into  one  part  of 
the  enemy's  dominions,  when  her  actual  destination  was 
another,  break  the  chain.  The  conduct  of  this  ship  was 
much  less  to  be  defended  than  that  of  the  vessel  last  above 
eited.(') 

In  another  case,  the  vessel  oivned  by  citizens  of  the  Uni- 
ted States,  sailed  from  thence  before  the  war,  with  a  cargo 
on  freight,  on  a  voyage  to  Liverpool  and  the  north  of  Eu- 
rope, and  thence  back  to  the  United  States.  She  arrived 
in  Liverpool,  there  discharged  her  cargo,  and  took  in  an- 
other at  Hull,  and  sailed  for  St.  Petersburg  under  a  Bri- 
tish  license,  granted  the  8th  of  June,  1812,  authorizing  the 
export  of  mahogany  to  Russia,  and  the  importation  of  a  re- 
turn cargo  to  England.  On  her  arrival  at  St.  Petersburg, 
she  received  news  of  the  war,  and  sailed  to  London  with  a 
Russian  cargo  consigned  to  British  merchants,  v.uuered  m 
Sweden,  and  in  the  spring  of  1813  sailed  under  convoy  in 
structions  of  a  British  man  of  war  for  England,  where  she 
arrived  and  delivered  her  cargo ;  sailed  for  the  United 
States  in  ballast  under  a  British  license,  and  was  captured 
near  Boston  light  house.  After  the  decisions  above  cited, 
it  was  not  to  be  contended  that  the  sailing  with  a  cargo,  on 
freight,  from  Russia-  to  the  enemy's  country,  after  a  full 
knowledge  of  the  war,  did  not  amount  to  such  a  trading 
with  the  enem}^,  as  to  subject  both  vessel  and  cargo  to  con- 
demnation as  prize  of  war,  had  they  been  captured  whilst 
proceeding  on  that  vo}age.     The  alleged  necessity  of  un- 

(J)  Per  MAnsHALL,  C;  J.  The  Aksnnder.    Supreme  Court  of  llie  U. 
S.  February  T.  1814.  M,  S. 


IBIS      -^  LAW    OF  CHAP.  VII. 

dertaking  that  vnynge  to  enable  the  master  out  of  the 
frtight  to  discharge  his  expenses  at  St.  Petersburg,  coun- 
tenanced as  the  master  declared  by  the  opinion  of  the  mi- 
nister of  the  United  States  there — that  by.  undertaking  such 
a  vo3age  he  would  violate  no  municipal  law ;  although 
those  considerations,  if  founded  in  truth,  present  a  case  of 
peculiar  hardship,  yet  they  afford  no  legal  excuse  which  it 
vas  competent  for  the  court  to  admit  as  the  basis  of  its  de- 
cision. The  counsel  for  the  claimant,  seemed  to  be  aware 
of  the  insufficiency  of  this  ground,  and  applied  their  strength 
to  shew  tbat  the  vessel  was  not  taken  i7i  delicto,  having 
finished  the  offt-nsive  voyage,  in  which  she  was  engaged, 
in  the  enemy's  country,  and  being  captured  on  her  return 
home,  and  in  ballast.  It  was  not  denied  hat  if  she  had 
been  taken  in  the  same  voyage  in  which  the  offence  was 
committed,  though  after  it  was  committed,  she  would  be 
considered  as  still  i?i  delicto,  and  subject  to  confiscation  ; 
but  it  was  contended  that  her  voyage  terminated  at  the  en- 
emy's port,  and  that  she  v/as,  on  her  return,  on  a  new  voy- 
age. But  even  admit  that  the  outward  and  homeward 
voyage  could  be  separated,  so  as  to  render  them  two  dis- 
tinct voyages,  still  it  could  not  be  denied  that  the  termim 
of  the  homeward  voyage  were  .St.  Petersburg  and  the  Uni- 
ted States.  The  continuity  of  such  a  voyage  cannot  be 
broken  by  a  voluntary  deviation  of  the  master  for  the  pjur- 
pose  of  carrying  on  an  intermediate  trade.  That  the  going 
from  the  neutral  to  the  enemy's  country  was  not  undertaken 
as  a  new  voya'ge  was  admitted  by  the  claimants,  who  alle- 
ged that  it  was  undertaken  as  subsidiary  to  the  voyage  home. 
It  was,  in  bhort,  a  voyage  from  the  neutral  country  by  the 
ivav  of  the  enemy  country  ;  and,  consequently,  the  vessel, 
during  anj'  part  of  that  voyage,  if  seized  for  any  conduct 
;  ubjeciing  her  to  confiscation  as  prize  of  war,  was  seized 
m  ddictO,{'") 

('^)  Vcv  WAsnisfQTON,  J    The  Joseph.    Supreme  Court  of  the  U.  !^ 
Tehruarv  T.  1814.  M.  S. 

( 


JJIARITIME    CAPTURES    AND    PRIZES.  SlQ* 

Where  goods  were  purchased  sometime  before  the  lute 
war  by  the  claimant's  agent  in  Great  Britain  on  his  sole 
account,  but  not  shipped  for  the  United  States  until  the 
month  of  May,  1813  ;  they  were  pronounced  liable  to  con- 
demnation. The  court  expressed  no  opinion  as  to  the 
right  of  a  citizen  of  the  belligerent  stute,  on  the  breaking 
out  of  hostilities,  to  withdraw  his  property,  purchased  bc^- 
fore  the  war,  from  the  enemy^s  country.  Admitting  such 
right  to  exist,  it  is  necessary  that  it  should  be  exercised  vvidi 
due  diligence  and  within  a  reasonable  time  after  a  know- 
ledge of  hostilities.  To  admit  a  citizen  to  withdraw  pro- 
perty from  an  enemy  country  a  long  time  after  the  war, 
under  the  pretext  of  its  having  been  purchased  before  the 
"war,  would  lead  to  the  most  injurious  consequences,  and 
hold  out  temptations  to  ojvery  species  of  fraudulent  and  il- 
legal traffic  with  the  enemy.  To  such  an  unlimited  extent 
the  right  cannot  exist.  This  shipment  was  not  made  until 
more  than  eleven  montlis  had  elapsed  after  war  was  decla- 
red ;  and  the  court  were  of  opinion  that  it  was  then  too  late 
for  the  party  to  make  the  shipment,  so  as  to  exempt  hira 
from  the  peiialty  attached  to  an  illegal  traffic  with  the  ene- 
iny.(") 

5.  The  same  -course  of  decisions  which  has  established 
'that  property  of  a  subject  or  citizen  taken  trading  with  the 
enemy,  is  forfeited,  has  decided  also  that  it  is  forfeited  as 
prize.  The  ground  of  the  forfeiture  is,  that  it  is  taken  ad- 
bfring  to  the  enemy,  and"'  therefore  the  proprietor  is  pro 
hac  vice  to  be  considertd  as  an  enemy,  and  his  propertv 
must  be  condemned  to  the  captors.(")  But  in  a  case  of  this 
description,  a  claim  was  interposed  by  the  United  States 
claiming  a  priority  of  right  over  the  captors  to  the  proper- 
ty in  question,  upon  the  ground  of  an  antecedent  forfeiture 

(")  Per  SroixT,  J.    The  St.  Lawrence.    Supreme  Caurt  oi"  the  U.  S, 
February  T.  1815   M.  S. 

fo)  1  liobiimnt  ?19.  The  Jfelly,    Iv.  A'jtis  to  the  Hoop. 


to  the  United  States  by  a  violation  of'the  non-intercourse 
act  of  March  1,  1809;  the  goods  having  been  put  on 
?)oard  Avith  an  intent  to  import  the  same  into  the  United 
States.  It  was  however  held  that  this  claim  ought  not  to 
prevail,  and  that  the  municipal  forfeiture  under  the  act,  was 
absorbed  in  the  more  general  operation  of  the  law  of  war. 
The  property  of  an  enemy  seems  hardly  within  the  purview 
of  mere  municipal  laws  of  trade,  but  is  confiscable  under 
the  Jus  g'cnthi?7i.Q'^ 

6.  We  have  seen  what  is  the  rule  of  public  end  munici- 
pal la^v^n  this  subject,  and  what  are  the  sanctions  by  which 
3t  is  guarded.  Various  attempts  have  been  made  to  evade 
its  operation,  and  to  escape  its  penalties,  but  its  inflexible 
rigour  has  defeated  ail  these  attempts. 

7.  Thus  where  goods  were  shipped  by  subjects  of  the 
belligerent  state  to  a  neutral  port,  with  an  ulterior  purpose 
of  sending  them  on  tp  the  enemy's  countty,,  the  goods  were 
condemned  as  taketi  in  a  course  of  commerce  rendering 
them  liable  to  confiscation.  Without  the  license  of  gov- 
crnment,  no  communication,  direct,  or  indirect,  can  be  car- 
ried on  with  the  enemy.  The  interposition  of  a  prior  port 
makes  no  difference ;  o// trade  with  ihe  enemy  is  illegal; 
and  the  circumstance  that  the  goods  are  to  go  first  to  a  neu- 
tral port,  will  not  make  it  lawful.  The  trade  is  still  liable* 
to  the  same  abuse,  and  to  the  same  political  danger,  what- 
ever that  may  h(i,(}) 

8.  So  wliere  the  trade  v/ith  the  enemy  was  by  a  house 
of  trade,  orte  of  the  partners  in  which  resided  in  the  belli- 
gerent state,  and  the  oth>.*r  in  a  neutral  country,  the- sh  ire 
of  the  former  was  condemned.  And  it  has  been  decided 
that  even  an  inactive  or    dormant  partner  cannot  receive 

0)  Per  Stout,  J.  Tiic  bally.  Supreme  Court  of  the  U.  S.  February 
T.  1814.  M.  S.   . 

(".)  4i  JRohimoii,TO.  'I'hc  Jong'e  Pictor.  T/i/e  also , 3  7?oWnson,  2?.  Tjje 
Jiidiun  ChivT. 


1^. 


Maritime  CAt-tuREs  and  prizes.'  2-21 

restitution  in  a  transaction,  in  which  he  could  not  be  law- 
fully engaged  as  a  sole  trader. (■■) 

9.  All  the  apparent  exceptions  which  have  been  suppo- 
sed  to  exist  to  the  rule  of  law  we  are  considering,  far  from 
weakening  its  force,  do  but  confirm  and  strengthen  it. 

10.  For  example,  if  a  belligerent  subject  employs  a  neu- 
tral to  purchase  for  him  in  the  country  of  the  enemv,  the 
neutral  is,  in  such  case,  but  the  mere  agent :  The  goods 
then  must  be  considered  to  pass  immediately  from  the 
enemy  to  the  subject;  and  such  a  transaction  would  be  il- 
legal. But  if  a  neutral  merchant  has  a  ship  or  goods  lying 
in  a  port  of  the  enemy,  he  is  at  liberty  to  dispose  of  them 
even  to  a  subject  of  the  belligerent  state,  as  freely  as  if 
they  were  on  the  seas.  The  locality  of  the  thing  will  not 
affect  the  legality  of  the  sale.(»)  The  trading  here  stated 
is  with  a  neutral  in  commodities,  which  though  locally  sit- 
uated in  the  enemy's  country,  have  become  incorporated 
into  the  stock  of  neutral  trade.  It  is  not  the  place  where 
the  thing  is,  which  decides  its  neutral  or  hostile  nature,  but 
the  national  character  of  the  person  to  whom  it  belongs. (*) 
Here  is  no  communication,  nor  contract  with  the  enemy; 
nothing  forbidden  by  the  policy  of  cutting  off  such  com- 
munication, and  by  the  impossibility  of  maintaining  an  ac° 
tion  on  such  contract. 

11.  So  also  in  the  case  of  a  shipment  on  the  part  of  a 
person  having  been  resident  in  Spain,  the  enemy's  country, 
as  consul  of  Great  Britain,  the  belligerent  state,  who  pur- 
chased the  articles  in  question,  for  the  supply  of  the  British 

(r)  6  Rohinson,  127-    The  Franklin. 

(')  4  Jiobinson,2S4:.  The  Satnuel,  in  nofi's  to  the  Countess  of  Lauder- 
dale. 

(')  Vattel,  L.  3.  c.  5.  §  75.  Puisqiie  ce  n'est  point  le  lieu  ou  vne  choxe  st 
trouve,  qui  decide  de  la  nature  de  eette  chose  Id,  mats  l<t  qnalit^  de  la  per ~ 
sonneaquielle  appartient — les  choses  appartenantes  d  des  personnesneutres^ 
qui  se  iroux)c  enpar/s  ennentif  doivent  etre  distingu^es  de  celles  qui  appartienent 
a  Cennemi. 

29 


223  '^  LAW    OF  CHAP    VII. 

fleet,  restitution  was  decreed.  But  the  court  declared  that 
it  did  not  mean  to  weaken  the  obligation  to  obtain  licenses 
for  every  sort  of  communication  with  the  enemy's  country, 
in  all  cases  where  the  measure  is  practicable ;  but  thought 
it  saw  great  difficulties  in  applying  for  a  license,  or  in  using 
it  in  this  case.  The  circumstances  of  this  case  might  be 
taken  as  virtually  amounting  to  a  license ;  inasmuch,  as  if 
a  license  had  been  applied  for,  it  must  have  been  granted. (•) 
And  in  the  case  of  a  license  for  raw  materials,  in  which  the 
article  of  goods  in  question  was  not  included,  restitution 
was  also  decreed  under  favourable  circumstances  arising 
from  the  situation  of  the  parties,  and  the  fact  of  the  orders 
having  been  given  previous  to  the  war  without  an  oppor- 
tunity of  countermanding.  But  the  court,  at  the  same 
time  wished  it  to  be  understood,  that  by  this  decree  the 
necessity  of  obtaining  a  license  was  not  in  any  degree  re- 
laxed. On  the  contrary,  the  court  could  not  sufficiently  incul- 
cate the  duty  of  applying  in  all  cases,  for  the  pi'otection  of  a 
license,  where  property  is  to  be  withdrawn  from  the  country 
of  the  enemy :  it  was  indeed  the  only  safe  way  in  which  par- 
ties could  proceed.  (^)  In  another  case  of  an  adventure  origi- 
nating before  the  war,  but  not  stopt  on  notice  of  hostilities, 
the  imputation  of  trading  with  the  enemy  was  held  to  be 
removed  by  the  partus  ad  quern  ceasing  to  be  hostile  be- 
fore the  arrival  of  the  vessel.  To  constitute  the  offence 
there  must  be  an  act  of  trading  to  the  enemy  country, 
as  well  as  the  intention.  There  must  be  a  legal,  as  well  as 
a  moral  illegality.  If  a  man  fires  a  gun  at  sea,  intending  to 
kill  a  friend^  which  would  be  legal  murder,  and  by  accident 
does  not  kill  a  friend/  but  an  enemy ^  the  moral  guilt  is  the 
same,  but  the  legal  effect  is  different.  The  accident  has 
turned  up  in  his  favour — the  criminal  act  intended  has  not 
been  committed,  and  the  man  is  innocent  of  the  legal  of 

( ")  4  JioiinaoH,  19.).     Tlie  Madonna  dclle  Grade. 
'0  5  liobimon,  HI.    The  Jaffl-ow  CaUiarlna. 


MARITIME    CAPTURES    AND    PRIZES.  2  23 

fence.  So,  if  the  intent  was  to  trade  with  an  enemy,  but 
at  the  time  of  carrying  the  design  into  effect  the  person  has 
become  not  an  enemy — the  intention  here  wants  the  corpus 
delicti^  No  case  had  -been  produced,  in  which  a  mere  in- 
tention to  trade  with  the  enemy's  country  has  enured  to 
condemnation.  Where  a  country  is  known  to  be  hostile, 
the  commencement  of  a  voyage  towards  that  country  may 
be  a  sufficient  act  of  illegality  ;  but  where  the  voyage  is 
undertaken  without  that  knowlege,  the  subsequent  event  of 
hostili^'will  have  no  such  eifect.("') 

12.  In  the  above  cases  the  trading  was  either  with  a 
neutral;  or  the  circumstances  were  considered  as  implying 
a  license ;  or  the  decree  of  restitution  was  declared  not  to 
relax  in  any  degree  the  necessity  of  obtaining  a  license ; 
or  the  trading,  v/as  not  consummated  until  the  enemy  had 
eeased  to  be  such.  As  to  other  cases  and  authorities  which 
have  been  supposed  to  form  exceptions  to  the  rule,  such 
as  the  Packet  de  Bilboa  and  the  note  appended  by  Sir  C. 
Robinson  to  the  case  of  the  Ocean,  it  may  be  reniarke'd 
that  the  first  was  i\ot  a  question  of  trading  with  the  ene- 
3ny,— but  in  whom  was  the  risk  of  the  shipment  until  deli- 
very, which  was  allowed  to  be  in  the  shipper,  as  being- 
made  before  the  v/ar,  contrary  to  the  general  rule  Vvhich 
will  not  permit  such  contracts  to  be  made  in  time  of  war,  so 
as  to  defeat  belligerent  rights.  (^)  And  as  to  the  second 
authority,  the  learned  reporter  is  evidently  considering  the 
effect  of  national  character  on  the  property,  and  not  the  ef- 
fect of  the  trade  in  which  the  party  was  engaged. (>') 

13.  Not  only  is  a  trade  v/ith  the  enemy  on  the  part  of 
the  citizens  or  subjects  of  the  belligerent  state,  prohibited 
and  punished  with  confiscation  in  the  courts  of  their  own 

(")  5  Robinson,2Sl.    TlieAbby. 

(^)  Chimfs  La-M  of  JVations,  ir.  21.     2  Rul/Iuson,  133,     Vide  Supra.  C 

m.  §  17. 

(y)  5  Salmon,  91,    Jn  nolle. 


5?24  LAW  or  viiw,  VII. 

sovereign,  but  during  a  conjoint  ^var,  no  subjext  of  a  co- 
belligerent  can  trade  with  the  common  enemy  without  be- 
ing liable  to  a  forfeiture  of  his  property  engaged  in  such 
trade,  in  the  prize  courts  of  the  ally.(^)  This  rule  is  a  co- 
roihiry  of  the  other,  and  is  founded  upon  the  principle,  that 
such  trade  is  forbidden  to  the  subject  of  the  co-belligerent 
by  the  municipal  law  of  his  own  country,  by  the  universal 
law  of  nations,  and  by  the  express  or  implied  terms  of  the 
treaty  of  alliance  subsisting  between  the  allied  powers. 
And  as  the  former  rule  can  be  relaxed  only  by  the  permis- 
sion of  the  sovereign  power  of  the  state,  so  this  can  only 
be  relaxed  by  the  analagous  permission  of  the  allied  na- 
tions, according  to  their  mutual  agreement,  A  declaration 
of  war  naturally  carries  with  it  an  interdiction  of  all  com^. 
mercial  intercourse ;  it  leaves  the  belligerent  countries  in  a 
state  that  is  inconsistent  with  the  relations  of  commerce. 
This  is  the  natural  result  of  a  state  of  war,  and  it  is  by  no 
means  necessary  that  there  should  be  a  special  iaterdiction 
of  commerce  to  produce  this  effect.  At  the  same  time  it 
has  happened  since  the  world  has  grown  more  commercial, 
that  a  practice  has  crept  in  of  admitting  particular  relaxa- 
tions; and  if  one  state  only  is  at  war,  no  injury  is  com- 
mitted to  any  other  state.  It  is  of  no  importance  to  other 
nations,  how  much  a  single  belligerent  chooses  to  weaken 
and  dilute  his  own  rights.  But  it  is  otherwise  when  allied 
natiens  are  pursuing  a  common  cause  against  a  common  en- 
emy. Between  them  it  must  be  taken  as  an  implied,  if 
not  an  express  contract,  that  one  state  shall  not  do  any 
thing  to  defeat  the  general  object.  If  one, state  admits  its 
subjects  to  carry  on  an  uninterrupted  trade  with  the  ene- 
my, the  conticquence  will  be  that  it  will  supply  that  aid  and 
comfort  to  the  enemy,  especially  if  it  is  an  enemy  depend- 
ing very  materially  on  the  resources  of  foreign  commerce, 

(')  JBynkershoek,  Q.  J.  P.  L.  10.     1  Robinson^  210.  The  Enigheid,  citCi! 
ia  the  Hoop.    4  Rubmon,  251.  The  Nayad?. 


MARITIME    UAPTUilES    AND    I'UIZL;.  "I-Zo 

which  may  be  very  injurious  to  the  prosecution  of  the  com- 
mon cause,  and  the  interests  of  its  ally.  It  should  seem, 
that  it  is  not  enough,  therefore,  to  say  that  the  one  state  has 
allowed  this  practice  to  its  own  subjects  ;  it  should  appear 
to  be  at  least  desirable  that  it  could  be  shewn,  that  either 
the  practice  is  of  such  a  nature,  as  can  in  no  manner  inter- 
fere with  the  common  operations,  or  that  it  has  the  allow- 
ance of  the  confederate  state. (*) 

14.  The  property  of  a  citizen  or  subject  of  a  belligerent 
state,  tak?^n  in  a  trade  prohibited  by  the  municipal  law  of 
his  own  country,  is  liable  to  confiscation  in  the  prize  courts 
of  that  country. 

It  is  a  good  moral  and  legal  principle,  that  a  man  must 
come  into  a  court  of  justice  with  clean  hands,  and  that  the 
law  will  not  lend  its  aid  to  a  person  setting  up  a  violation 
of  law,  on  the  face  of  his  claim.  It  is  a  sound  maxim,  to 
which  the  courts  of  municipal  law  have  always  attended; 
and  whether  the  penalty  is  great  or  small,  or  whether  there 
be  no  penalty  at  all,  yet,  if  the  act  is  reprobated,  a  man  will 
not  be  allowed  to  claim  a  right  founded  on  it :  But  cases 
had  not  occurred  in  which  the  court  of  admiralty  had  met 
uvith  occasion  to  apply  such  a  principle,  except  in  cases  of 
property  taken  in  a  trade  with  the  enemy ;  but  in  such 
cases  the  exception  is  not  to  be  considered  as  arising  from 
municipal  law,  but  from  the  principle  of  allegiance,  which 
is  a  general  principle  of  the  law  of  nations.  It  was  in  the 
case  of  the  Eliza  Worsely,(^)  that  it  was  first  decided  that 
the  court  of  admiralty  was  bound  to  take  notice  of  an  ille- 
gal practice  evidently  appearing  in  the  conduct  of  a  sub- 
ject of  the  belligerent  state,  whose  property  had  found  its 
way  into  the  hands  of  a  captor  of  his  own  country,  if  the 
transaction  in  which  that  property  had  been  employed,  wa,s 

i^)  6  Sobinson,  403.    TheNeptunus. 
C)  Lords,  July  13, 1?98. 


^2b  I.AW   OF  CHAP.  VII. 

a  transaction  contrary  to  the  law  of  his  own  country  :('^) 
And  in  the  case  of  the  Etrusco,  it  was  decided,  after  lohg 
ijeliberation,  that  property  condemned  in  consequence  of 
the  inadmissibility  of  such  a  claim,  was  to  be  condemned, 
not  to  the  individual  captor,  but  to  the  king.(^) 

15.  Such  has  been  the  course  of  decisions  on  this  mat- 
ter in  the  British  courts  of  prize.  But  the  same  courts 
have  determined  that  the  principle  did  not  extent  to  bar, 
a  neutral  proprietor  on  account  of  his  property  having  been 
taken  in  the  act  of  violating  the  British  navigation  laws. 
The  cases  that  have  been  mentioned  were  not  cases  in 
"which  the  courts  that  decided  them  took  on  themselves 
to  exercise  the  jurisdiction  of  the  revenue  court,  or  to  in- 
flict the  penalties  growing  out  of  that  species  of  law» 
What  they  did  was  only  to  reject  the  claim  of  British  sub- 
jects in  a  prize  court,  in  a  transaction  which  evidently 
showed  those  individuals  to  be  acting  in  violation  of  the 
laws  of  their  country,  which  they  were  bound  to  observe* 
But  there  is  no  instance  in  which  the  same  principle  has 
been  applied  to  foreigners.  It  was  asked,  if  you  apply 
such  a  principle  to  British  subjects,  why  not  to  foreigners? 
Some  distinctions  are  obvious.  In  the  first  place,  it  is  to  be 
recollected  that  the  prize  court  is  a  court  of  the  law  of  na- 
tions, though  sitting  under  the  authority  of  the  king  of 
Great  Britain.  It  belongs  to  other  nations  as  well  as  to  its 
own;  and  what  foreigners  have  a  right  to  demand  from  it 
is  the  administration  of  the  law  of  nations,  simply,  and  ex- 
clusively of  the  introduction  of  principles  borrowed  from 
the  municipal  jurisprudence.  In  the  case  of  a  British  sub- 
ject it  is  diiferent.  To  him  it  is  a  British  tribunal,  as  well 
as  a  court  of  the  law  of  nations ;  and  if  he  has  been  tramp- 
ling on  the  known  laws  of  his  country,  it  is  no  injustice  to 
say,  that  a  person  coming  into  any  of  the  courts  of  his  own 

(')  2  Iio!iinso7i,77-    The  Walsingham  Packet. 
(■' )  4  Jiol/inson,  2iO,    Tlig  Cwolins^.    Jn  J\'^tii. 


MARITILIE    CAPTURES    AND    TRIZE?.  22T 

country,  to  which  he  is  naturally  amenable,  in  such  a 
transaction,  can  receive  no  protection  from  them.  This 
cUfTerence  of  situation  affords  a  sound  and  material  distinc?, 
tion.  As  to  foreign  nations  and  their  subjects,  the  brcacn 
of  prohibitions  of  trade  are  merely  mala  prolubita;  it  is  an 
offence  against  the  peculiar  law  of  the  country,  which  they 
may  justly  demand  to  have  tried  more  directly  under  that 
system  of  law  to  which  it  properly  belongs.  With  respect 
to  a  subject,  the  violation  of  the  laws  of  his  own  country, 
carries  \(ath  it  also  the  malum  in  se  ;  and  therefore  it  is  no 
injustice  to  him,  that  his  claim  should  be  subject  to  rules, 
which  the  prize  court  might  not  think  itself  at  liberty  to 
apply  to  the  subjects  of  foreign  states. ('^) 

So  also  enemy  property,  being  liable  to  condemnation 
Jure  belliy  cannot  be  confiscated  for  a  breach  of  municipal 
law.(0 

16.  The  trade  in  slaves  has  given  rise  to  a  peculiar  case, 
which  does  not  aiTange  itself  under  the  rule,  that  the  pro- 

(«)  6  Robinson,  S41.    The  Recovery. 

C^)  Vide  ante,  §  5.  The  Sally.  This  principle  of  tlie  inadmlssibilit}'  of 
a  claim  in  the  prize  court,  in  violation  of  municipal  law  was  applied 
by  the  supreme  court  to  a  case  arising  under  the  Registry  Act  of  the  61st 
December,  1792,  wliich  prorides,  §  4-  That  in  order  to  the  registry  of  any 
ship  or  vessel,  an  oath  shall  be  taken  atnl  subscribed  by  the  owner,  or 
by  one  of  the  owners  ^hereof,  tleclarlng,  if  there  be  another  owner  or 
owners,  that  there  is  or  are  such  other  owi^r  or  owners,  specifying  his, 
Zier,  or  their  place  of  abode.  And  that  in  case  any  of  the  matters  of  fact 
In  the  said  oath  alleged,  which  shall  be  within  the  knowledge  of  <he  par- 
*y  so  swearing,  shall  not  be  true,  tijere  sluiU  be  a  forfeiture  of  the  ship  or 
vessel,  together  with  her  tackle,  furniture  and  apparel,  in  respect  of 
vhich  the  same  sliaVl  have  been  made,  of  the  value  thereof,  to  bei-ecover- 
cd  with  costs  of  suit,  of  the  person,  by  Vvhom  such  oath  shall  have  been 
made.  Lenox,  one  of  the  claimants,  swore  that  he,  together  with  Mait- 
5and,  oftJte  citv  of  J\i'exi<-Torh,  v/ere  the  sole  owners  ;  when  in  fact  Malt. 
?and  was  domiciled  at  the  time  in  Great  Britain.  The  ship  was  captured 
and  proceeded  against  as  prize  of  war.  It  was  decreed  that  the  claimants 
should  be  turned  out  of  court,  the  ship  forfeited,  and  t]ie  question  to 
'Fhom  she  should  be  condemned  rcserved« 


S-2S  LAW    OF  cii-vr.  VlJ, 

perty  of  a  citizen  or  subject,  taken  in  violation  of  the  laws 
of  his  own  country,  is  liahle  to  confiscation  in  the  pri/.e 
courts  of  that  country,  nor  under  the  negative  principle., 
that  the  property  of  a  neutral  foreigner  is  not  liable  to  con- 
fiscation for  a  breach  of  the  municipal  law  of  the  belliger- 
ent state  ;  but  was  decided  partly  under  the  former  rule, 
partly  under  an  exception  to  the  latter,  and  luider  the  law 
of  nature  and  nations.  The  conjoint  operation  of  all  three 
enured  to  condemnation  in  the  case  of  th-t  Amedie.(^) 
This  ship,  under  American  colours,  was  captured  in  De- 
cember, iSOr,  by  a  British  cruizer,  being  employed  at  tho 
time  of  capture,  in  carrying  slaves  from  the  coast  of  Africa 
to  a  Spanish  colony.  The  claimant,  ho^vever,  who  was  a 
citizen  of  the  Unjted  States,  complained  of  the  capture, 
and  demanded  from  the  British  prize  court  restitution  of 
property,  of  which  he  alleged  that  he  had  been  unjustly 
dispossessed*  In  all  the  former  caaes  of  this  kind,  which 
had  come  before  the  court,  the  slave  trade  was  liable  to 
considerations  very  different  from  those  which  belonged  to 
it  then.  It  had  formerly  been  prohibited  (so  far  as  respect- 
ed carrying  slaves  to  the  colonies  of  foreign  nations)  by  the 
United  States  ;  but  by  the  British  laws  it  was  still  allowed. 
It  appeared,  therefore,  difficult  to  consider  the  prohibitory 
law  of  America  in  any  other  light  than  as  one  of  those  mu- 
-  nicipal  regulations  of  a  foreign  state,  of  which  the  court 
could  not  take  any  cognizance.  But,  by  the  alteration 
which  had  since  taken  place,  the  question  stood  on  differ- 
ent groimds,  and  was  open  to  the  operation  of  very  differ- 
ent principles.  The  slave  trade  had  since  been  totally  abo- 
lished in  Great  Britain,  and  the  legislature  had  pronounced 
it  contrary  to  the  principles  of  justice  and  humanity. 
Whatever  they  might  think  as  individuals  before,  they  could 
not,  sitting  as  judges  in  a  British  court  of  justice,  regard 
the   trade  in  tli:it  light,  while  th^-'ir  own  kiv/s  permitted  it. 

r)  Lords,  28ai  .Tiily,  IRIO. 


MAniTIME    CAPTURPS    AND    PRIZES.  ^'i$ 

• 

But  they  might  -now  assert,  that  this  trade  could  not,  ab- 
stractedly speaking,  have  a  legitimate  existence.  When 
the  learned  judge,('')  by  whom  this  decision  was  pronoun- 
ced, said  abstractedly  speaking,  he  meant  that  Great  Bri- 
tain had  no  right  to  control  any  foreign  legislature  that 
might  think  fit  to  dissent  from  this  doctrine,  and  to  permit 
to  its  own  subjects  the  prosecution  of  this  trade ;  but  they 
had  now  a  right  to  affirm,  th^t^  pri7na  facie ^  the  trade  is  il- 
legal ;  and  thus  to  throw  on  claimants  the  burden  of  proof, 
that,  in  respect  of  them,  by  the  authority  of  their  own  laws, 
it  is  otherwise.  As  the  case  then  stood,  they  thought  they 
were  entitled  to  sa}^,  that  a  claimant  can  have  no  right,  upon 
principles  of  universal  law,  to  claim  the  restitution  in  a 
prize  court,  of  human  beings  carried  as  his  slaves.  He 
must  show  some  right  that  has  been  violated  by  the  cap- 
ture, some  property  of  which  he  has  been  dispossessed, 
and  to  which  he  ought  to  be  restored.  In  this  case,  the 
laws  of  the  claimant's  country  allowed  of  ho  right  of  pro- 
perty such  as  he  claimed.  There  could,  therefore,  be  no 
right  of  restitution.  The  consequence  was,  that  the  judg- 
ment of  the  court  below,  condemning  the  property,  must 
be  affirmed. (') 

Thus  we  perceive  that  this  decision  which  does  SO  much 
honor  to  the  tribunal  by  which  it  was  made,  and  to  the 
judge  by  whom  it  was  pronounced,  although  it  has  at  the 
iirst  view  ;an  anomalou"s  tendency,  is  strictly  conformable 
to  principle,  and  flows  with  irresistible  force  from  the  three- 
fold operation  of  the  law  of  nature,  the  act  of  Congress, 
and  of  Parliament.  The  first  prohibits  the  traffic  in  men  ; 
the  second  prohibited  the  carrying  of  slaves  from  Africa 
to  the  West  Indian  and  American  colonies;  and  the  latter 
enabled  a  British  prize  court  to  enforce  this  double  prohi- 
bition against  an  Ameincan,  citizen.     yi(7-e  enhn  iiaturaU 

(h)  Sir  William  Grant. 

(')  Edinburgh  Heview,  Vol.  16.  No,  XXI.  p.  436 
30 


2S0  lAW  Ot  CHAP.  VH, 

• 

omnes  homines  ah  initio  liberi  nascebantur  (y^ — and,  unless 
expressly  permitted  by  the  municipal  law  of  his  own  coun- 
try, no  person  can  assert  a  right  of  property  in  human  be- 
ings. Much  less  can  he  do  so  where  that  law  expressly 
prohibits  the  acquisition  and  transfer  of  such  property.  It 
is  refreshing  and  delightful  to  the  mind  in  contemplating 
the  law  of  war,  to  repose  for  a  moment  on  a  subject  over 
which  humanity  has  so  long  wept,  but  at  last  begins  to  lift 
up  her  head  and  rejoice.  The  abolition  of  this  accursed 
traffic,  in  which  our  own  country  has  the  honor  of  taking  so 
distinguished  a  lead,  incorporated  into  the  late  treaties  of 
Paris  and  of  Ghent,  will,  it  is  to  be  hoped,  soon  form  a 
part  of  the  conventional  law  of  nations,  and  carry  down  to 
posterity  the  fame  of  the  present  age,  unrivalled  in  arts  and 
in  arms,  and  what  is  still  more  glorious,  in  philanthropy  ! 

C')  JusHniatis  InstUutis,  L.  1,  tit.  ^ 


MARITIME   CAPTURES   AND    PRIZES.  231 


CHAPTER  VIII. 


Of  ransoms y  recapture y  and  claims  for  salvage. 

1.  When  a  ship  and  cargo,  the  property  of  the  enemy,  is 
taken  on  the  high  seas,  it  is  the  duty  of  the  captors  to  seize 
the  papers  found  on  board,  and  to  send  the  vessel  into  some 
port  for  adjudication.  But  vvhet-e  circumstances  will  not 
permit  this  to  be  done,  or  render  it  inconvenient,  they  may 
permit  the  captured  to  ransom  their  property  for  such  sum 
as  may  be  agreed  upon  between  the  parties. (*) 

2.  This  contract  is  unquestionably  legal  on  the  part  of 
the  captors  of  every  country,  although  the  municipal  law 
of  Great  Britain  prohibits  it  to  be  entered  into  in  relation 
to  the  property  of  her  subjects  captured  by  her  enemies. 
Thus  by  the  Stat.  22d,  George  III.  c.  25.  it  is  enacted, 
That  it  shall  not  be  lawful  for  any  of  his  majesty's  sub- 
jects to  ransom,  or  to  enter  into  any  contract  or  agreement 
for  ransoming  any  ship  or  vessel  belonging  to  anj^  of  his 
majesty's  subjects,  or  any  merchandizes  or  goods  on  board 
the  same,  which  shall  be  captured  by  the  subjects  of  any 
state  at  war  with  his  majesty,  or  any  person  committing 
hostilities  against  his  majesty's  subjects  ;  and  that  all  con- 
tracts and  agreements  which  shall  be  entered  into,  and  all 
bills,  notes,  and  other  securities,  which  shall  be  given  by 
any  person  or  persons  for  ransom  of  any  such  ship  or  ves- 
sel, or  of  any  merchandize  or  goods  on  board  the  same, 
shall  be  absolutely  void  in  law,  and  of  no  effectivhatever. 

(■')  Cqnsokt^  dtl  Mave.  c.  290. 


2325  LAW    OF  CHAr.    VIII. 

It  therefore  follows  that  no  such  contract  can  be  enforced 
against  a  British  subject  in  the  courts  of  his  own  country- 
There  is  no  such  prohibition  by  the  municipallaws  of  other 
states,  and  the  contract  may  therefore  be  enforced  in  them 
according  to  the  mode  prescribed  by  the  law  of  nations. 
For  the  belligerent  state  having  authorised  its  public  and 
private  vessels  of  war,  to  seize  and  take  the  ships  and  merr 
chandize  of  its  enemies,,  it  has  equally  delegated  to  them 
its  authority  to  ransom  the  same  when  taken.  There  are 
certain  co?nmercia  belli;  and  good  faith  is  to  be  observed 
even  towards  enemies.  Si  quando  singuli  hosti  promise- 
rintj  est  in  eo  jides  servanda.Q'^ 

3.  The  captor  obliges  himself  by  the  terms  of  this  con- 
tract to  release  the  captured  vessel  and  cargo,  and  to  per* 
mit  her  K)  proceed  to  the  designated  port  within  a  certain 
limited  time,  giving  the  master  a  safe-conduct  for  her  pro- 
tection against  the  cruizers  of  his  nation,  and  its  allies,  du- 
ring the  same  period  of  time.  This  is  what  results  from 
the  express  terms  which  are  always  used  in  ransom  bills. (*) 

4,  But  it  may  be  asked,  how  the  commander  who  has 
made  this  contract  of  ransom,  by  the  safe-conduct  which 
he  gives  to  the  master  of  the  captured  vessel,  can  bind  the 
'Other  cruizers  of  his  nation,  and  its  allies,  to  permit  the  ves- 
sel to  proceed  ?  For  it  is  a  principle  of  law  that  one  cannot 
bind  a  third  person  by  a  contract  to  which  he  is  not  a  party. 
Tile  answer  is,  that  it  is  not  this  contract  alone,  and/>fr  se^ 
which  binds  the  commanders  of  other  cruizers,  to  respect 
tlie  safe-conduct  thus  given  ;  but  it  is  the  authority  of  the 
belligerent  state,  vmdcr  the  express  or  implied  sanction  of 
which  this  safe-conduct  is  given.  For  as  the  state  cannot 
possibly  execute  every  thing  by  its  supreme  magistrate,  it 

(")  CiVcro,  Dc  OfRciis,  l-  1.  c.  13.  Grotms,  De  J.  B.  ac  P.  L.  C;  23. 
§  .  Fnjfcndorf,  J>.  3.  c.  6.  §  11.  Loccenins,  De  Jure  Maritimo,  \j. 
o.  tit.  3    No.  6.     Burlimaqui,  Part  4,  c.  4.     Valtel,  L.  3.  Cv  16.  §  i,2o' 

i")  2  UuUns,  15.    ^filler  ct  -ji.  v.  tiic  Itfsolutiou; 


MARITIME    CAPTUKES    AMD    PRIZES.  233 

is  necessary  that  it  should  communicate  a  part  of  its  power 
to  its  military  and  naval  officers.  Without  a  special  man- 
date from  the  sovereign  or  state,  these  officers  are  consi- 
dered as  invested  with  all  the  necessary  powers  for  thej-j( 
proper  exercise  of  their  functions.  As  this  is  the  case 
with  the  commanders  of  public  armed  vessels,  so  also  is  it 
with  those  of  private  armed  vessels.  They  are  authorised 
by  the  state,  whose  commission  they  bear,  not  only  to  cap- 
ture the  ships  and  goods  of  the  enemy,  but  also  to  ransom 
them  when  they  judge  it  more  advantageous.  As  it  is  on 
the  part  of  the  state  and  in  the  name  of  the  state  that  they 
capture  the  enemy's  ships  and  goods,  so  also  it  is  on  the 
part  of  the  state,  and  in  some  sort,  in  the  name  of  the  state, 
that  they  ransom  them.  This  contract,  and  the  safe-con- 
duct which  is  granted  in  conformity  to  it,  ought  therefore  ' 
to  be  considered  as  sanctioned  by  the  authority  of  the  state, 
to  which  all  cruizers  bearing  its  commission  are  bound  to 
defer.  So  also  by  the  implied  obligation  of  the  treaties  of 
alliance,  the  cruizers  of  the  allies  of  the  captor's  country 
are  also  bound  to  respect  the  safe-conduct  which  he  thus 
grants  according  to  its  terms  and  conditions. (*^) 

5.  This  safe  conduct  is  of  no  avail  unless  the  vessel  is 
found  within  the  course  prescribed  and  the  time  limited  by 
the  contract.  Thus  by  the  French  Ordinance  of  1706,  art. 
8,  it  is  permitted  to  the  French  cruizers  to  re-capture  any 
ransomed  vessel  which  thpy  may  find  deviating  from  the 
course  and  time  prescribed  by  the  terms  of  the  ransom- 
bill,  and  to  bring  the  same  into  the  ports  of  the  kingdom, 
for  condemnation.  If,  nevertheless,  the  ransom  vessel  ap- 
peared to  have  been  driven  out  of  her  course  by  storms, 
and  was  about  to  resume  it,  it  would  seem  to  be  equitable 
to  allow  her  the  benefit  of  the  safe  conduct. 

6.  If  the  ransomed  vessel  is  lost  by  the  perils  of  the 
seas  before  her  arrival,  the  obligation  to  pay  the  sum  stipu- 

(**)  I'otlti^erf  De  Propriite,  No.  134,  135. 


'234  LAAV    OF  CHAr.  VIII. 

lated  for  her  raiiGom  is  not  thereby  extinguished.  The 
captor  has  indeed  guaranteed  the  master  of  the  captured 
vessel  against  being  interrupted  in  his  course,  or  re-taken 
by  other  cruizers  of  his  nation,  or  its  allies,  but  he  has 
not  insured  him  against  losses  by  the  perils  of  the  seas.  If, 
however,  it  is  expressly  agreed  by  the  terms  of  the  jan- 
som-bill,  that  the  loss  of  the  vessel,  during  her  voyage,  by 
the  perils  of  the  seas,  should  discharge  the  master  from 
the  payment  of  the  stipulated  sum,  this  contract  ought  to  be 
observed  in  practice.  But  the  frauds  to  which  this  clause 
may  expose  the  captor,  render  it  necessary  that  it  should 
lie  rigorously  restrained  to  the  case  of  a  total  loss  on  the 
high  seas,  instead  of  extending  it  to  shipwreck  or  strand- 
ing, which  would  afford  the  master  a  temptation  to  cast 
away  his  vessel,  in  order  to  save  the  most  valuable  part 
pf  the  cargo,  and  thus  avoid  the  payment  of  the  ransom 
money.  (•) 

7".  When  the  ransomed  vessel,  having  deviated  from  the 
prescribed  course,  and  exceeded  the  limited  time,  is  re-ta- 
Icen  by  another  cruizer  of  the  same  nation,  a  question 
arises  whether  the  debtors  of  the  ransom  are  in  this  case 
discharged  from  their  obligation  ?  For  the  negative,  it 
may  be  said,  that  if  the  proprietors  of  the  ransomed 
vessel  and  goods  are  not  discharged  from  the  payment  of 
the  ransom  by  the  loss  of  the  vessel  and  goods  through  the 
perils  of  the  seas,  which  is  a  case  of  inevitable  accident, 
still  less  ought  they  to  be  discharged  from  this  obliga- 
tion, where  the  loss  is  occasioned  by  the  fault  of  their 
agent,  the  master,  who  by  contravening  the  contract  of 
xansom  has  voluntarily  exposed  himself  to  be  captured  by 
another  cruizer.  Notwithstanding  these  reasons,  the  prac- 
tice is  well  settled  that  when  a  vessel,  after  having  been 
ransomed,  has  been  retaken  on  account  of  a  deviation  from 

OPothier.  nc  Propri^tc,  No.  138.  F^to,  Sur  I'Ordonnance,  L.  3. 
tit.  ».  DCS  Prises,  art.  19. 


MARITIME    CAPTURES   AND    PRIZES.  -23^ 

the  terms  of  the  ransom,  the  debtors  of  the  ransom  arc 
discharged  from  their  obligation,  which  is  merged  in  the 
prize,  and  the  amount  is  deducted  from  the  net  proceeds 
thereof,  and  paid  to  the  first  captor,  whilst  the  residue  is 
paid  to  the  second  captor.  The  reason  upon  which  this 
practice  is  founded  is,  that  it  is  in  the  name  and  by  the  au- 
thority of  the  state,  that  the  first  captor  ransoms  the 
vessel;  it  is  in  the  name  and  by  the  authority  of  the  state 
that  the  second  captor  retakes  her,  the  state  having  assign- 
ed its  title  both  to  the  ransom  and  the  prize  to  them  :  equi- 
ty and  good  faith  will  not  then  permit  that  the  state,  or  one 
and  the  same  person,  should  take  both  the  vessel  and  the 
ransom  of  the  vessel ;  the  amount  of  the  ransom  ought 
therefore  to  be  deducted  from  the  value   of  the  vessel. C^) 

8.  When  the  captor,  after  having  ransomed  a  vessel  be- 
longing to  the  enemy,  is  himself  taken  by  the  enemy,  to- 
gether with  the  ransom-bill  of  which  he  is  the  bearer,  this 
ransom-bill  becomes  a  part  of  the  capture  made  by  the  en- 
emy, and  the  persons  of  the  enemy  nation,  who^^^re  debt- 
ors of  the  ransom,  are  thereby  discharged  from  their  obli- 
gation. This  debt,  once  extinguished,  cannot  be  again 
revived,  even  if  the  vessel  which  has  ransomed  that  of  the 
enemy,  and  is  afterwards  taken  by  the  enemy,  is  subsequent- 
ly re-taken  from  the  enemy.(K) 

When  a  captured  vessel  is  ransomed,  the  papers  are  not 
to  be  taken  possession  of  by  the  captor,  but  to  be  Ictt 
on  board,  and  one  or  more  hostages  are  to  be  taken  as  se- 
curity for  the  faithful  performance  of  the  contract  ou  the 
part  of  the  captured.  The  death  of  this  hostage  does  not 
discharge  the  contract;  for  the  party  trusts  to  him  as  a  col- 
lateral security  only,  and  by  losing  it  does  not  also  lose  his 

(')  Pothier,  De  Propriclc,  Xo.  139.  Valin,  Sur  I'Ordonnance,  L.  3.  tit, 
9.  Des  Prises,  art.  19. 

(y)  JPof/'/er,  De  Propri^;^,  No,  140. 


"2^  LAW  QT  CHAP.  Vllf, 

original  seciirlt)",  unless  there  is  an  express  agreement  t-r* 
that  effect.  (•') 

9.  It  has  been  determined  in  the  English  courts  of  com- 
mon law,  that  an  alien  enemy  cannot,  by  the  municipal 
laws  of  England,  sue  for  the  recovery  of  a  right  claimed  to 
be  acquired  by  him  in  actual  war?(')  and  Sir  William  Scott 
states,  that  even  in  the  case  of  ransoms,  which  are  con- 
tracts, but  contracts  arising  ex  jure  belli^  and  tolerated 
as  such,  the  enemy  was  not  permitted  to  sue  in  hir^ 
own  proper  person  for  the  payment  of  the  ransom  bill, 
even  before  British  subjects  were  prohibited  by  the  above- 
mentioned  statvite  from  entering  into  this  contract;  but  the 
payment  was  enforced  by  an  action  brought  by  the  impri- 
soned hostage  in  the  courts  of  his  own  country,-  for  the 
recovery  of  his  freedom. C^)  But  it  seems  difficult,  ex- 
cept for  mere  technical  objections,  to  say  why  a  suit  should 
not  be  brought  directly  upon  the  ransom-bill  itself,  by  the 
alien  enemy,  who  is  the  holder  of  it,  if  it  be  a  lawful  con- 
tract. T",e  express  terms  of  the  contract,  as  they  are  usu- 
ally inserted  in  ransom-bills,  bind  the  master  of  the  ran- 
somed vessd,  as  well  in  his  own  name,  as  in  that  of  the 
owners  of  the  vessel  and  cargo,  to  the  payment  of  the  stip- 
ulated sum.  He  is  the  agent  of  these  owners,  lawfully  au- 
thorised to  enter  into  such  contracts  as  are  for  their  benefit, 
and  conducive  to  the  preservation  of  the  vessel  and  mer- 
chandize entrusted  to  his  care.  His  signature  therefore 
binds  them  as  debtors  of  the  ransom,  and  to  reimburse  the 
expenses  of  supporting  the  hostage,  who  has  been  given  as 
a  surety,  in  the  enemy's  countrj'.C) 

(*■)  Valin,  Traltc  dcs  Prises,  c.  II.  Xo.  1  et  r).  Burrow's  Reports,  l/'34'. 
"R'lcord  vs.  Beltenham. 

(')  Loutfliii'  Rel)orts,  627-     I'orrau  vs.  ITartby. 

(')  1  Jiohinson,  201.     The  TIoop. 

f)  Pnthkr,  We  Prop:iO^,  No.  136,  \Z7. 


MARITIME    CAPTURES    AND    PRIZES.  237 

10.  A  recapture  may  be  made  either  from  a  pirate  ;  a 
captor,  clothed  with  a  lawful  commission,  but  not  an  ene- 
my ;  or  lastly,  from  an  enemy. 

11.  In  the  first  case,  there  can  be  no  doubt  the  property 
ought  to  be  restored  to  the  owner;  for  as  pirates  have  no 
lawful  right  to  make  captures,  the  property  has  not  been 
dives'.ed  from  him.  He  has  only  been  deprived  of  its 
possession,  to  which  he  has  been  restored  by  the  recapture. 
For  the  service  rendered  to  the  owner,  the  retaker  is  enti- 
tled to  a  remuneration  in  the  nature  of  salvage. (■^) 

Thus  by  the  French  Ordinance  of  1681,  Liv.  3.  tit.  9. 
ties  Pmes,  art.  10,  it  is  provided  that,  the  ships  and  effects 
of  the  subjects  or  allies  of  France,  retaken  from  pirates,  and 
claimed  within  a  year  and  a  day  after  being  reported  at  the 
admiralty,  shall  be  restored  to  the  owners,  upon  pa}menu 
of  one  third  of  the  value  of  the  vessel  and  goods,  as  sal- 
vage. And  the  same  is  the  law  of  Great-Britain;  but 
the  usage  of  Holland,  and  of  certain  other  countries,  was 
formerly  otherwise,  giving  the  whole  of  the  property  to  the 
Iretakers,  as  does  that  of  Spain,  if  the  property  has  been  in 
possession  of  the  pirates  twenty-four  hours. 

Valin,  in  his  Commentary  upon  the  above  article  of  the 
French  ordinance,  is  of  the  opinion  that  if  the  recapture  be 
made  by  a  foreigner  who  is  a  subject  of  a  state,  the  law  of 
which  gives  to  the  recaptors  the  whole  of  the  property, 
St  could  not  he  res'.ored  to  the  former  owner;  and  he 
cites  in  support  of  this  opinion  a  decree  of  the  parliament: 
of  Bordeaux,  of  the  8th  March,  1635,  in  favour  of  a  sub- 
ject of  Holland,  who  had  retaken  a  French  vessel  from  pi- 

(m)  Grotius,  De  J  B  ac  P  L.  3.  c.  9.  §  17.  Lrjcccnius,  Be  Jure  Mar.  L, 
2.  c.  3.  No.  4.  Bi/nhershoek,  Q.  J.  P.  L.  1.  c.  17.  2Bro~Mn's  Civ.^J 
Adm.  Lcno,  c  11.  p.  461-  Ea  que  piratoe  nobis  eri^merimty  non  ofjus  ha~ 
ietit  postliminio  ,•  qxiia  jus  gentium  iiUs  non  conceilit,  ut  J;.'s  dominii  mutari 
possiiH,  Ff.  dc  cant,  ct  postl.  revars.  Abbott  o:iShrppi:r^ — Story's  edition 
12. 


51 


23S  LATV    Otf  OHAP.  VIII 

rates. (")  To  this  opinion  Pothier  objects,  that  the  laws  of 
Holland  having  no  power  over  Frenchmi;n  and  their  pro- 
perty within  the  territory  of  France,  the  French  subject 
could  not  thereby  be  deprived  of  the  property  in  his  vessel, 
which  was  not  divested  by  the  piratical  capture,  and  that  it 
ought  consequently  to  be  restored  to  him  upon  payment  of 
the  salvage  prescribed  by  the  ordinance. f") 

Under  the  term  allies,  in  this  article,  are  included  neu- 
trals;  and  Valin  is  also  of  opinion  that  the  property  of 
the  subjects  of  friendly  powers  retaken  from  pirates  by 
French  captors  ought  not  to  be  restored  to  them  upon  pay- 
ment of  salvage,  if  the  law  of  th(  ir  own  country  gives  it 
wholly  to  the  retakers,  otherwise  there  would  be  a  defect  of 
reciprocity,  vvhich  would  offend  aguinst  th  it  impartial  jus- 
tice which  is  due  from  one  state  to  another.(i') 

But  a  capture  by  the  Barbary  powers  is  not  a  piratical 
seizure,  which  will  have  the  effect  of  invalidating  the  con- 
version of  property  under  it.  They  were  formerly  consi- 
dered as  pirates,  but  have  since  acquired  the  rights  of  lega- 
tion and  of  war  in  form.  Consequently  recaptures  from 
these  states  are  to  be  judged  by  the  same  rule  as  those 
from  any  other  public  enemies. ^i) 

-  12.  If  the  properly  be  re-aken  from  a  captor  clothed 
with  a  lawful  commission,  but  not  an  enemy,  there  would 
still  be  as  little  doubt  that  it  must  be  r£stored  to  the  origi- 
nal owner.  For  the  act  of  taking  being  in  itself  a  wrong* 
ful  act  could  not  change  the  property  which  must  still  re- 
main in  him. 

If  the  neutral  vessel  thus  recaptured  were  laden  with 
contraband  goods  destined  to  an  enemy  of  the  fust  captor, 

(»)  Valin,  Siir  rOrdonnancc,  L.  3.  tit    9.  Des  Prises,  :ut.  10. 
(")  I'othier,  Dc  ProprK-l^,  No.  101. 

Jp)   V'^liii,  Sur  rOrdoniianco,  L   3.  tit.  9.  dcs  Prises,  art.  10 
^1)  4  liobinson,  3.    ThcHc-k'a. 


MARITIME    CAPTtJRES    AND    PRIZES.  230 

it  may  be  doubted  vvhc  ther  they  should  be  restored,  inas- 
much as  they  were  liable  to  be  confiscated  to  the  first,  cap- 
tor. But  a  Dutch  ship  taken  under  these  circuitx-itanccs 
was  restored  by  the  French  council  ol  prizes,  in  1759;  and 
the  decision  seems  lo  be  conformable  to  principle.  Sal- 
vage ought,  however,  in  this  distance,  to  be  given  to  the  re- 
captors,  as  it  is  tothe.r  exeriions  that  the  property  is  in- 
debted for  its  escapf  from  conderiination.(') 

But,  in  general,  no  salvage  is  due  for  the  recapture  of 
Heutral  vessels  and  cffi..cts,  upon  the'  principle  that  the  libe- 
ration of  a  bona  fide  neutral  from  the  hands  of  the  enemy  is 
no  beneficial  service  to  him,  inasmuch  as  the  same  enemy" 
would  be  compelled  by  the  tribunal  of  his  o\vn  country  to 
make  restitution  of  the  property  with  costs  and  damages, 
for  the  unjust  seizure  and  detention.  Such  is  the  rule  laid 
down  in  the  French  prize  code.(') 

To  this  general  rule,  however,  an  important  exception 
has  been  made,  founded  on  the  principle  mentioned  in  the 
Code  dcs  Prises  in  case  the  vessel  and  cargo  are  liable  to 
be  confiscated  by  the  enemy.  In  that  case,  it  is  immateri- 
al whether  the  property  be  justly  liable  to  be  thus  confisca- 
ted according  to  the  law  of  nations,  since  thjtt  can  make  no 
difference  in  the  meritorious  nature  of  the  service  ren- 
dered to  the  original  owner  by  the  recaptor.  For  the 
groui>d  upon  which  salvage  is  refused  by  the  general  rule 
is  that  the  prize  courts  of  the  captor's  country  will  duly 
respect  the  obligations  of  the  law  of  nations ;  a  presump- 
tion, which  in  the  wars  of  civilized  states,  each  belligerent 
is  bound  to  entertain  in  their  respective  dealings  with  neu- 
trals.    But  if  in  point  of  fact  those  obligations  are  not  duly 

(f)  J\I(irtens  on  Privateers,  §  52. 

(*)  Sa  JMajest^  a  juge  pendent  la  derr.iere  gnerre,  que  la  reprise  ihi  tia-. 
t'ire  ncutre  faite  par  nn  corsaire  Francais  florsqiie  le  navire  n  etailpai 
charg6  demarchandises  prohibSes,  ni  dans  le  cas  d'etre  con^sqn^  parCenne,' 
■t;:ij  etait  rv.dle,    Code  cUs  Prisss,  an  1784;  tern,  ^. 


24©  LAW    ei-  CHAP.    VIII. 

respected  by  those  tribunals,  and  in  consequence  neutral  pro- 
perty is  unjustly  subjected  to  confiscation  in  them,  a  substan- 
tial benefit  is  conferred  upon  the  original  owner  in  rescuing 
his  property  from  this  peril,  which  ought  to  be  remu- 
nerated by  the  payment  ot  salvage.  It  was  upon  this  prin- 
ciple that  the  prize  courts  of  England  and  of  the  United 
States,  during  the  v/ar  which  was  terminated  by  the  peace 
of  Amiens,  pronounced  salvage  to  be  due  upon  neutral 
property  retaken  from  French  cruisers.  During  the  revo- 
lution in  France,  great  irregularity  and  confusion  had  ari- 
sen in  the  prize  code,  and  had  crept  into  the  tribunals  of 
that^country,  by  which  the  property  of  neutrals  was  render- 
ed liable  to  be  condemned  upon  grounds  both  unjust  and 
unknown  to  the  law  of  nations.  The  recapture  of  neutral 
property  which  might  have  been  exposed  to  confiscation  by 
'Tieans  of  this  irregularity  and  confusion  was  therefore  con- 
sidered by  the  English  and  A  iierlcan  courts  of  prize,  as  a 
meritorious  service,  and  remunerated  by  the  payment  of 
salvage. C^)  The  issuingof  the  French  decreee  at  Berlin,  ou 
the  21sL  November,  1806, occasioned  the  exception  to  be  re- 
vived in  the  practice  of  the  British  prize  couri:s,  who  again 
adjudged  salvage  to  be  paid  for  there-capture  of  neutral  pro- 
perty which  v/as  liable  to  condemnation  under  that  decree. (") 
It  is  true  that  that  the  decree  had  remained  inoperative  up- 
on American  property  until  the  condemnation  of  the  car- 
go of  the  Ilorrzon  by  the  council  of  prizes,  in  October, 
1807,  and  therefore  it  may  be  thought,  perhaps,  in  strict- 
ness, the  English  court  of  admiralty  ought  not  to  have  de- 
creed salvage  in  the  case  of  the  San.^om^  more  especially 
as  the  convention  of  the  thirtieth  September,  1800,  between 

<"•)  2  Robinson,  299.  T!ie  War  0;iskan.  1  Cranch,  1,  Talbot  vs.  Seaman, 
A,  Jiohimon^  156.  1  lie  F.lconnra  Calharina.  5  Robinson,  54:.  The  Car- 
lotta.    6  Robinn'in,  lOi.    The  Huntress. 

(«)  6  Robinnon,  410.  The  Sanson^.  I  Edivards,  254,  The  Actcon 
Vide  Appendix,  N<r.  V. 


MARITIME    CAPTURES    AND    PRIZES.  241 

the  United  States  and  France,  was  then  subsisting,  and  the 
terms  of  which  were  wholly  inconsistent  with  the  provi- 
sions of  the  Berlin  decree.  But  as  the  cargo  of  the  Ho- 
rizon was  condemned  in  obedience  to  the  terms  of  the  im- 
perial rescript  of  the  eighteenth  September,  1807,  having 
been  taken  before  the  Sansom,  wliiether  that  rescript  be  con- 
sidered as  an  interpretation  of  a  doubtful  point  in  the  ori- 
ginal decree,  eras  a  declaration  of  an  anterior  and  positive 
provision,  there  can  be  no  doubt  the  Sansom  would  have 
been  condemned  under  it — consequently  a  substantial  bene- 
fit was  rendered  to  the  neutral  owner  by  the  recapture,  and 
salvage  was  due  of  course.  And  the  same  principle  would 
apply  to  the  prize  proceedings  of  all  the  belligerents,  in 
their  turn,  during  the  late  maritime  war  in  Europe,  all  of 
whom,  and  none  more  than  Great  Britain  herself,  have 
trampled  under  foot  the  antient  law  of  nations,  and  in  many 
cases  rendered  the  rescue  of  neutral  property  from  the 
grasp  of  either,  a  valuable  service  entitling  the  recaptor  to 
salvage. 

13.  Lastly,  the  recapture  maybe  made  from  an  enemy. 

The  jus  postliminii  was  a  fiction  of  the  Roman  law,  by 
which  persons  or  things  taken  by  the  enemy  were  restor- 
ed to  their  former  state  when  coming  again  under  the  power 
of  the  nation  to  which  they  formerly  belonged.  Postlimi- 
Jiium  Jingit  qui  captus  esty  in  civitate  semper  fuisse — Inst. 
L.  1.  tit.  12.  And  it  is  thus  defined  in  the  Pandects,  Jus 
quo  perinde  omnia  restituuntur  jura^  de  si  captus  ab  hosti' 
bus  noJt  esset — L.  49.  tit.  15.  It  was  applied  to  free  per- 
sons or  slaves,  returning  J&05;  liminii ;  and  to  real  property, 
and  certain  moveables,  such  as  ships  of  war  and  private 
vessels,  except  fishing  and  pleasure  boats.  Navilms  longis 
atquc  onerari'iSy  postliyniyiium  est,  non  piscatories,  aut  vohip- 
tatis  causa — Ff.  49.  These  things,  therefoie,  when  retaken, 
were  restored  to  the  original  owner,  as  if  they  had  never 
been  out  of  his  control  and  possession  ;  and  Grotius  attests 
that  such  wafS  the  ancient  maritime  law  of  Europe,  which 


-4-2  LAW    or  CHAP.    VIH, 

determined  that  th?  property  could  be  divested  from  the 
owner  only  by  bringing  it  infi-a  prcesidia  of  the  capturing 
poAver.(^) 

But  whatever  may  be  the  true  rule  of  the  law  of  nations 
respecting  the  time  when  property  vests  in  the  captor  so  as 
to  preclude  a  restitution  to  the  former  owner  upon  recap- 
ture, it  is  certain  that  there  is  at  present  no  rule  operating 
with  the  force  and  authority  of  a  general  law.     It  mav  be 
fit  there  should  be  such  a  rule,  and  it  might  be  either  the 
rule  of  immediate  possession,  or  the  rule  of  pcrnoctation  and 
twenty-four  hours  possession,  or  it  might  be  the  rule  of  bring- 
ing infra  prxsldia  ^  or  it  might  be  a  rule  requiring  an  actual 
sentence    of  condemnation  :    either  of   these  rules  might 
be  sufficient  for  general  practical   convenience,    although 
in   theory   perhaps   one    might    appear    more    just    than 
another  :  but  there  is  no  such  rule  of  practice ;  nationc 
concur  in  principle  indeed  so  far  as  to  require  firm  and  se 
cure   possession ;  but  their  rules  of   evidence   respecting 
possession  are  so  discordant,  and  lead  to  svxch  opposite  con- 
clusions, that  the  mere  unity  of  principle  forms  no  imiforra 
rule  to  regulate  the  general  practice.    If  it  be  asked,  under 
the  known  diversity  of  practice  on  this  subject,  what  is  the 
proper  rule  for  a  state  to  app^y  to  the  recaptured  property 
of  its  allies,  or  of  neutrals  ?   It  is  answered,  that  the  liberal 
and  rational  proceeding  would  be,  to  apply  in  the  first  in- 
stance the  rule  of  that  jcountry  to  which  the  recaptured  pro- 
perty belongs.     Such   a   rule  would  be  both  liberal   and 
just :  to  the  recaptured,  it  presents  his  own  consent,  bound 
up  in  the  legislative  wisdom  o!    his  own  country:  to  the 
recaptor  it  cannot  be  considered  as  injurious.     Where  the 
rule  of  the  recaptured  would  condemn,  whilst  the  rule  of 
the  recaptor  prevailing  amongst  his  own  countrymen  would 
restore,  it  brings  an  oi)vi(His  advantage;  and  even  in  the 
case  of  immediate  resliluiion,  under  the  rules  of  the  rccap- 

(*)  Crotiir,  Dc  J.  R  a»  P.  L-  2.  c,  6   §  ■?.     €onrohto  del  Marc,  c.  29?. 


MARITIME    CAPTURES    ASTD    PRIZES.  243 

lliretl,  the  recapturing  country  would  rest  secure  in  the  re- 
liance of  receiving  reciprocal  justice  in  its  turn.  It  may 
be  said,  what  ii  this  reliance  should  be  disappointed  ? — 
Redress  must  then  be  sought  from  retaliation ;  which  in 
the  disputes  of  independent  states,  is  not  to  be  considered 
as  vindictive  retaliation,  but  as  the  just  and  equal  measure 
of  civil  retribution. (^*')  In  any  other  course  of  proceeding 
there  vvould  be  a  defect  of  that  reciprocity  which,  accord- 
ing to  Valin,  would  vjifend  against  the  impartial  justice  due 
from  one  state  to  another. 

It  is  upon  these  grounds  that  the  law  of  our  own  country 
proceeds.  By  the  act  of  Congress  of  the  third  JMarch, 
1800,  it  is  enacted,  That  the  vessels  or  goods  of  persons 
permanently  resident  within  the  territory,  and  under  the 
protection  of  any  foreign  government  in  amity  with  the 
United  States,  and  retaken  by  vessels  of  the  United  States, 
shall  be  restored  to  the  owner,  he  paying  for,  and  in  lieu  of 
salvage,  such  proportion  of  the  value  thereof,  as  by  the  law 
and  usage  of  such  goverement,  within  whose  territory  such 
former  owner  shall  be  so  resident,  shall  be  required  of  any 
vessel  or  goods  of  the  United  States  under  like  circum- 
stances of  recapture  ;  and  where  no  such  law  or  usage  shall 
be  known,  the  same  salvage  shall  be  allowed  as  is  providird 
by  the  first  section  of  this  act.  Provided  also,  that  no  such 
vessel  shall  be  so  jestored  to  such  former  owner,  in  anv  case 
where  the  same  shall  have  been  condemned  as  prize  by 
competent  authority  before  the  recapture,  nor  in  any  case, 
when  by  the  law  or  usage  of  the  foreign  governmeni,  the 
goods  or  vessels  of  citizens  of  the  United  Slates  in  lik<^ 
circumstances  would  not  be  restored. 

It  becomes  then  of  importance  to  ascertain  what  is  the 
law  and  usage  of  the  different  maritime  nations  on  the  sub- 
ject of  recaptures  j  and  this  is  to  be  sought  for  either  in 

(w)  1  Robinson.  50.  The  Santa  Cruz.  J.a  relorvion  dc  JnUf  Vaifclf.  X. 
2.  c.  18.  §  341. 


244  LAW    OF  cUaV.   VIII* 

the  municipal  code  of  each  country,  or  in  the  conventional 
law  by  which  they  are  bound  to  one  another. 

14.  By  the  French  Ordinance  of  1681,  Lh.  3.  tif.  9. 
Des  Prises,  art.  8.  it  is  provided^  That  if  any  French  ves- 
sel is  retaken  from  the  enemy,  after  being  in  his  handfe 
more  than  twenty-four  hours,  she  shall  be  good  prize  to 
the  recaptor ;  and  if  retaken  before  twenty-four  hours  have 
elapsed,  shall  be  restored  to  the  owner,  with  the  goods 
laden  on  board,  upon  the  payment  of  one  third  the  value 
thereof  for  salvage. 

It  seems  that  the  above  is  the  rule  applied  by  Prance  to 
recaptures  of  the  vessels  and  effects  of  her  allies.  For  the 
council  of  prizes  decided  on  the  ninth  February,  1801,  as 
to  two  Spanish  vessels  recaptured  by  a  French  private 
armed  vessel  after  the  twenty-four  hours  had  elapsed,  that 
tbey  should  be  condemned  as  good  prize  to  the  recaptor. 
Had  the  recapture  been  made  by  a  public  armed  vessel, 
whether  before  or  after  the  tweirty-four  hours  had  elapsed, 
it  appears  that  the  property  would  have  been  restored 
without  salvage,  according  to  the  usage  with  respect  to 
French  subjects,  and  on  account  of  the  intimate  relation 
subsisting  between  the  two  powers. (''j  For,  notwithstand- 
ing the  express  terms  of  this  article  of  the  ordinance  make 
no  exception  of  public  armed  vessels,  yet  the  usage  in 
France  has  been  to  restore  property  retaken  by  them,  whe- 
ther it  had  been  in  the  possession  of  the  enem.y  twenty- 
four  hours  or  not,  and  without  the  payment  of  salvage. (>) 

A  question  drose  irt  France  upon  the  construction  of  this 
article  undir  the  following  circumstances.  A  French  pri- 
vate armed  vessel,  during  war  with  England,  had  taken  an 
English  merchantman  and  kept  possession  for  three  days, 
at  the  ei.d  of  which   time  both  vessels  were  taken  by 'the 

C)  Azuvi,  Part  2.  c  4    §  11. 

(y)  VaJin,  Siir  I'Ordonnance,  L.  3.  tit.  9.  Deis  Pr'ses,  srt  3.  Poihi-r, 
Dc  rropriiJ-Cj  No  97.     1  Cade  lies  Prises,  9. 


MARITIME    CAPTURES    AND    PRIZES.  246 

English,  and  after  being  in  their  possession  sixteen  hours 
were  re-taken  by  another  French  private  armed  vessel. 
There  was  no  doubt  raised  as  to  the  French  private  armedi 
vessel  which  had  been  re-captured  that  she  must  be  resto- 
red upon  payment  of  one  third  of  the  value  for  salvage.  The 
question  was  respecting  the  English  merchantman,  which 
the  first  captor  maintained  ought  to  be  restored  to  him  as 
well  as  his  own  vessel.  The  grounds  upon  which  he  sup- 
ported his  claim,  were  that  he  had  acquired  the  domain  of 
property  in  this  prize,  it  having  remained  in  his  possession 
for  three  days,  and  that  he  must  be  considered  as  preserv- 
ing it,  notwithstanding  the  recapture  by  the  enemy,  who 
had  maintained  his  possession  only  sixteen  hours.  On  the 
other  hand  the  French  recaptor  contended  that  although  the 
English  prize  belonged  to  the  first  captor  whilst  it  remain- 
ed in  his  possession,  it  was  no  longer  his  when  retaken  from 
the  enemy ;  that  although  he  preserved  the  right  of  proper- 
ty in  his  own  vessel,  because  it  had  not  remained  in  the 
hands  of  the  enemy  more  than  twenty-four  hours,  it  did 
not  therefore  follow  that  the  same  rule  was  to  be  applied  to 
the  English  prize,  for  it  is  of  the  nature  of  domain  of  pro- 
perty which  we  acquire  in  things  taken  from  the  enemy 
that  we  preserve  it  no  longer  than  those  things  are  in  our 
possession,  and  lose  it  the  moment  we  are  divested,  and 
they  again  frill  into  the  enemy's  hands,  in  the  same  manner 
as  we  retain  the  property  of  savage  animals  only  so  long 
as  they  are  in  our  possession,  and  lose  it  the  moment  we 
part  with  the  possession,  and  they  have  returned  to  their 
natural  state  of  liberty.  Upon  these  grounds  the  council 
of  State  decided  in  his  favour,  and  by  a  decree  of  the  fifth 
November,  1748,  condemned  the  English  prize  to  his  use.(*) 
15.  The  laws  of  Spain  upon  this  subject  are  the  same  with 

(0  Valin,  Sur  I'Ordonnance,  L.  3.  tit.  9.  Dcs  Prises,  art.  3.     Ptthier, 
De  Propri^tc,  No.  98. 


«2 


446  XAW    OF  CHAP.  Vlll. 

those  of  France,  except  in  the  single  case  of  recapture  from 
pirates  mentioned  above. 

16.  By  the  Portuguese  Ordinance  of  May,  1797,  the 
rate  of  salvage  on  recaptures  was  established  for  ships  of 
war  at  one  eighth,  and  one  fifth  for  privateers. 

17.  By  the  laws  of  Denmark,  if  a  Danish  ship  be  recap- 
tured, before  she  has  been  in  possession  of  the  enemy  for 
twenty-four  hours,  the  property  is  equally  divided  between 
the  original  owner  and  the  re-captors ;  if  after  being  in  pos- 
session of  the  enemy  twenty  four  hours,  is  then  condemn- 
ed to  the  recaptors.  "'■' 

18.  By  the  Swedish  Ordinance  of  1667,  it  is  declared, 
that  in  case  a  Swedish  vessel  taken  by  the  enemy,  shall  be 
recaptured,  the  recaptor  shall  be  entitled  to  a  salvage  of 
two  thirds  the  value,  and  the  rernaining  third  shall  be  res- 
tored to  the  owner  without  regard  to  the  length  of  time  the 
property  may  have  been  in  the  enemy's  possession. 

19.  By  the  British  statutes  of  the  thirty-third  George 
III.  c.  66,  forty  third  George  III.  c.  160,  and  forty  fifth 
George  III.  c.  72,  it  is  enacted,  that  any  vessel,  and  goods 
laden  therein,  taken  as  prize,  which  shall  appear  to  have 
belonged  to  British  subjects,  or  to  the  British  dominions, 
and  which  shall  be  retaken,  shall  be  restored  to  the  former 
owners,  upon  payment  for  salvage  of  one  eighth  part,  if  re- 
taken by  any  of  his  majesty's  ships,  and  if  retaken  by  any 
privateer,  or  other  vessel  or  boat,  of  one  sixth  part  of  the 
value.  And  if  the  same  shall  have  been  retaken  by  the  joint 
operation  or  means  of  one  or  more  of  his  majesty's,  and  one 
or  more  private  ship  or  ships,  then  the  proper  court  shall  or- 
der such  salvage  to' be  paid  as  shall  be  deemed  reasonable. 
But  if  the  vessel  so  retaken  shall  appear  to  have  been  set  forth 
as  a  vessel  of  war  by  the  enemy,  then  the  same  shall  not  be 
restored  to  the  former  owners,  but  shall  be  adjudged  lawful 
prize  for  the  use  of  the  captors.  And  if  the  recaptured 
vessel  had  not  been  carried  into  an  enemy's  port,  it  shall  be 
Jawful,  with  the  consent  of  the  recaptors,  for  her  to  prose- 


MARITIME    CAPTtJRES    AND    PRIZES.  24? 

Cute  her  voyage,  and  .  the  recaptors  need  not  proceed  to 
Adjudication  until  six  months  after,  or  the  return  of  the 
vessel  to  the  port  from  whence  she  sailed  :  if  the  vessel  does 
f  ot  return  to  such  pott  directly,  or  the  recaptors  have  had 
no  opportunity  to  proceed  to  adjudication  within  the  time 
limited  on  account  of  the  absence  of  the  vessel,  the  proper 
court  shall  decree  restitution  to  the  former  owners,  at  the 
instance  of  the  recaptors,  on  payment  of  salvage,  and  upon 
reasonable  evidence. 

20.  By  the  act  of  the  third  March,  1800,  the  Congress 
of  the  United  States  have  provided,  Sec.  1.  That 
when  any  vessel,  other  than  a  vessel  of  war  or  privateer, 
or  goods,  which  shall  be  taken  as  prize,  shall  appear  to 
have  before  belonged  to  any  person  resident  within  or  un= 
der  the  protection  of  the  United  States;  and  to  have  been 
taken  by  their  enemy^  the  same  not  having  been  condemned 
as  prize  before  the  recapture  thereof,  the  same  shall  be  re- 
stored to  the  former  owner,  upon  payment  for  salvage,  if 
retaken  by  a  public  Vessel  of  the  United  States,  of  one 
eighth  part,  and  if  by  a  private  vessel,  one  sixth  part,  of  the 
value  of  the  vessel  or  goods  so  to  be  restored,  excepting  all 
imposts  and  public  duties  to  which  the  same  may  be  liable. 
And  if  the  vessel  so  retaken  shall  appear  to  have  been  set 
forth  and  alrfied  as  a  vessel  of  war,  before  the  retaking 
thereof,  the  former  owner,  shall  be  adjudged  to  pay  for 
salvage  one  moiety  of  the  value  of  the  same.  Sec.  2.  That 
when  any  vessel  -or  goods,  which  shall  be  taken  as  prize, 
shall  appear  to  have  before  belonged  to  the  United  States, 
and  to  have  been  taken  by  their  enemy,  the  Same  not  hav- 
ing been  condemned  as  prize  before  the  recapture  thereof, 
shall  be  restored  to  the  United  States.  And  for  salvage, 
there  shall  be  paid  from  the  treasury,  of  an  unarmed  ves- 
sel or  any  goods  therein,  one  sixth  part  of  the  value,  when 
ihade  by  a  private  vessel,  and  one  twelfth  part  when  made 
I)y  a  public  armed  vessel  of  the  United  States ;  and  for  the 
recapture  of  a  public  armed   vessel,  or  any  goods  therein;, 


548  LAW   OP  CHAP.    Vlll. 

one  moiety  of  the  value  when  made  by  a  private  armed 
vessel,  and  one  fourth  part  when  made  by  a  public  armed 
vessel  of  the  United  States. 

It  will  be  perceived  that  there  is  a  material  difference 
between  the  British  and  American  laws  on  this  subject  ; 
the  British  continuing  the  jus  postliminiiy  as  between  the 
original  owners  and  recaptors,  forever,  unless  the  vessel 
retaken  appears  to  have  been  set  forth  by  the  enemy  as  a 
ship  of  war,— whilst  the  United  States'^law  continues  the 
juspostlimmii  until  the  property  is  divested  by  a  sentence 
of  condemnation  in  a  court  of  competent  jurisdiction,  and 
no  longer.  (») 

Under  the  first  section  of  the  above  law  of  the  United 
States,  it  has  been  adjudged  that  the  salvage  for  recapture  of 
goods,  being  American  property  on  board  an  American 
armed  ship,  which  was  fitted  out  for  war,  and  made  resis- 
tance, was  only  one  eighth  part,  if  retaken  by  a  public  ves- 
sel, and  if  by  a  private  vessel,  one  sixth  part  of  the  value, 
although  the  salvage  for  the  ship  was  one  moiety.  The 
words  of  the  statute  were  construed  as  expressing  this  dis- 
tinction. C*) 

e  1 .  Where  a  vessel  of  the  belligerent  state  had  been  cap- 
tured, and  afterwards  sold  by  the  enemy  to  a  neutral  at  sea, 
who  purchased  for  the  purpose  of  restoring  her  to  the  ori- 
ginal owner,  salvage  was  held  t©  be  due.  If  the  neutral 
had  purchased  the  vessel  upon  his  own  account,  it  would 
have  been  an  illegal  transaction  ;  as  he  coi^ld  derive  no  ti- 
tle from  the  captors  without  a  previous  sentence  of  con- 
demnation. But  being  a  transaction  by  which,  under  the 
form  and  colour  of  a  sale,  he  was  to  recover  the  proper- 
ty for  the  owners,  he  had  rendered  them  a  very  meritorious 

(')  4  Cvancli,  293.  Iliilson  vs  Gucsticr.  And  such  was  the  principle 
adopted  in  the  Knghsh  tribunals  before  it  was  changed  by  their  statutes- 
2.  Burroiv,  6<J4.  1208.  1.  Edwards,  186.  L'Actif. 

('•)  The  Adeline.    Supreme  Court  of  the  U.  S.  February  T.  1815.  M  .F. 


MARITIME   CAPTURES   AND    PRIZES.  249 

service,  and  was  justly  entitled  to  salvage.  It  is  not  ne- 
cessary that  the  recovery  of  the  property  should  be  attend- 
ed with  personal  risk  to  the  salvor;  in  cases  where  the 
enemy  makes  a  present  of  a  captured  vessel  to  a  stranger, 
who  has  encountered  no  hazard,  who  has  not  endangered 
a  hair  of  his  head,  or  laid  out  a  sixpence  of  his  money, 
the  party  is  always  held  entitled  to  a  salvage  if  he  has  been 
the  instrument  of  bringing  the  vessel  back  to  the  posses- 
sion of  its  owner.(')  And  the  Conso.ato  del  Mare  has  pre- 
scribed that  in  case  a  ship  or  cargo  are  ransomed  from  the 
enemy  by  a  person  other  than  the  original  owner,  the  pro- 
perty shall  be  restored  to  the  original  owner  upon  repay- 
ment of  the  amount  of  the  ransom  money  for  salvage. (*} 
22.  Where  a  public  ship  of  war  had  a  number  of  mer- 
chant vessels  under  her  convoy,  and  one  ofthem  was  captur- 
ed by  the  enemy,  and  afterwards  re-taken  by  the  ship  of  war, 
it  was  determined  that  she  was  entitled  to  the  salvage  al- 
lowed to  public  vessels  on  ordinary  occasions.  The  only 
material  question  to  be  considered  was,  whether  there  was 
such  a  capture  made  by  the  enemy  as  would  found  a  case 
of  re-capture.  Many  cases  might  be  put  of  the  effects  of 
immediate  acts  of  re-capture,  to  show  that  it  is  by  no  means 
necessary  that  the  possession  by  the  enemy  should  be  long 
maintained,  or  at  any  particular  distance  from  the  convoy- 
ing ship.  The  question  will  always  be,  whether  it  was  an 
effectual  possession,  and  such  as  would  suspend  the  relation 
of  the  convoying  ship ;  not,  whether  it  is  a  complete  and 
firm  possessions,  which,  for  some  purpose,  is,  in  contempla- 
tion of  law,  not  held  to  be  effected,  till  the  prize  is  carried 
infra  prxsidia.  The  rule  oi  infra  prccsidia,  however,  is  cer- 

0)  1  jE</warrf»,.192.    The  Henry.. 

(d)  c.  290.  §  1149  But  military  salvage  is  not  given  unless  the  pro- 
perty has  been  in  the  possession,  actual  or  constructive,  of  the  enemy. 
2  Robinson,  138,  The  Packet  de  Bilboa.  4  Robinson,  147.  The  Frank- 
lin. 


t80  LAW    CI  CHAP.    VIli; 

tainly  not  the  measure  to  be  applied  to  questions  of  thi.* 
kind.  As  little  can  it  be  contended  that  the  vessel  should 
haVe  been  out  of  sight,  to  found  a  case  of  re-capture  r 
it  will  be  sufficient  if  there  has  been  a  complete  and  absolute 
possession,  which  supersedes  the  authority  of  the  convoy- 
ing ship ;  and  such  a  possessioii  must  have  been  maintain- 
ed for  some  time  in  this  mstance.  Every  act  of  possession 
was  exercised ;  the  master  was  taken  out ;  the  vessel  was 
completely  manned  with  as  many  of  the  captor's  crew  as 
were  sufficient  to  overpower  all  resistance,  and  the  vessel 
was  taken  in  tow  by  the  enemy.  By  these  acts  the  former 
relation  subsisting  between  the  merchant  vessel  and  the 
convoying  ship  was  necessarily  suspended,  A  ship  in  pos- 
session of  the  enemy  can  obey  no  signal,  nor  support  its  for- 
mer duties  and  subordination  to  the  convoying  ship.  There 
might  still  remain  an  obligation  on  the  part  of  the  convoy- 
ing ship  to  attempt  a  re-capture,  so  far  as  it  could  be  done 
consistently  with  the  safety  of  the  other  vessels  under  her 
protection.  Such  a  duty  would  result  from  the  injunctions  of 
the  law,  which  provides  a  reward  for  the  re-captor  when 
the  service  is  effected,  and  cannot,  therefore,  be  intended 
to  preclude  the  demand  of  salvage,  though  the  service 
rendered  to  the  individual  by  the  re-captor,  may  be  n&' 
more  than  a  sense  of  public  duty  would  otherwise  require 
from  him.(*) 

23.  Salvage  is  due  for  the  ship,  cargo,  and  freight ;  but 
it  was  decided  were  the  ship  was  captured,  and  re-cap- 
tured on  her  return  voyage,  that  she  was  entitled  to  her 
>vhole  freight,  subject  to  a  deduction  for  salvage.  In  this 
case  the  master  was  taken  out  on  the  first  capture,  and  ow- 
ing to  that  circumstance,  no  claim  was  immediately  given 
lor  the  cargo.  The  case  of  the  cargo  was  therefore  litiga- 
ted— and  was  the  court  to  say  that  the  ship  was  to  stay  ahd 
wait  the  result  of  the  proceedings,  when  she  herself  had 

(')  5  Robinson,  315.  Tlie  Wight. 


Hft 


MARITIME    CAPTURES    AND    PRIZES.  251 

been  restored,  whilst  the  cargo  was  contested,  and  might 
be  condemned,  and  whilst  it  was  by  no  means  clear,  that 
anv  cargo  would  remain  to  be  carried  on  ?  This  would  be 
an  unreasonable  expectation.  The  court  did  not  say  that 
a  party  is  to  act  in  a  hasty  manner,  and  to  run  away  imme- 
diately on  the  restitution  of  his  ship.  Something  is  to 
be  conceded  in  the 'way  of  accommodation  j  a  reasonable 
time  is  to  be  allowed,  and  if  it  is  not  allowed,  a  proportion 
of  the  freight  may  be  deducted.  So  also  where  a  ship  was 
re-taken,  brought  in,  and  immediately  restored,  with  some 
part  of  the  cargo  claimed  for  the  owner  of  the  ship;  the  re- 
mainder of  the  cargQ  was  sometime  afterwards  claimed 
and  restored  upon  the  original  evidence :  The  cargo  had 
been  unloaded,  but  the  ship  was  not  gone  away  at  the  time 
of  the  restitution,  and  a  demand  was  made  upon  the  mas- 
ter to  take  the  cargo  on  board  again,  and  proceed  on  his 
original  voyage ;  but  he  refused,  and  went  away  with  the 
ship  J  and  the  owners  of  the  cargo  were  obliged  to  find  an- 
other conveyance  for  their  goods.  The  question  as  to  the 
freight  was  brought  before  the  prize  coutt,  and  it  was  ob- 
jected, that  it  was  not  due,  as  the  ship  had  not  performed 
her  part  of  the  contract ;  but  the  court  decreed  the  whole 
freight  to  be  a  charge  on  the  cargo.  (^)  But  where  a  ship 
was  captured  on  her  outward  voyage,  re-captured,  and 
brought  b^ck  to  the  port  or  ^uasi  port  of  her  departure, 
freight  pro  rata  itmeris  was  held  not  to  be  due.(s)  And  in 
giying  salvage  on  freight  the  prize  court  makes  no  separa- 
tion as  to  minute  portions  of  the  voyage.  When  the  voy- 
age has  commenced,  and  the  freight  is  in  the  course  of  be- 
ing earned,  the  whole  freight  is  included  in  the  valuation  of 
the  property  on  which  salvage  is  given.  ('') 

(f)  3  Robinson,  101.    The  Race  Horse.    The  Hamilton,  in  notis. 

(8)  lb.  180.    The  Hiram. 

(")  6  Sobipion,  88.    The  Dorothy  Foster: 


252  LAW   OF  CHAP.   VIII^ 

24.  But  besides  the  case  of  recapture  which  we  have 
hitherto  considered,  a  vessel  and  goods  may  be  recovered 
from  the  enemy's  possession  by  the  insurrection  of  prison- 
ers, on  board ;  or  by  being  forced  by  stress  of  weather,  or 
by  other  accidcntcoming  into  port,  or  falling  into  the  hands 
of  the  subjects  of  the  belligerent  state  or  of  friendly  pow- 
ers. These  circumstances  form  the  cases  of  rescue  from 
the  enemy,  and  the  finding  of  property  derelict  which  has 
been  in  his  possession. 

25.  In  the  case  of  rescue  we  must  distinguish  whether  it 
be  of  property  belonging  to  the  citizens  or  subjects  of  the 
belligerent  state  by  other  citizens  or  subjects  of  the  same  ; 
of  foreign  property  by  foreigners ;  of  foreign  property  by 
the  citizens  ot  subjects  of  the  bfelligerent  state  ;  or,  lastly, 
of  their  property  by  foreigners.  In  all  these  instances  the 
property  is  restored  upon  salvage  :  and  in  the  first  men- 
tioned the  rule  adopted  in  giving  salvage  is  that  of  recap- 
ture ;  but  the  right  of  a  tribunal  of  the  belligerent  state  to 
entertain  a  demand  for  salvage  upon  foreign  proper- 
ty rescued  hy  foreigners  has  been  questioned.  It  has 
been  intimated  by  a  high  authority  that  salvage  being  a 
question  of  the  jus  gentium,  and  materially  different  from 
the  question  of  a  mariner's  contract,  which  is  a  creature  of 
the  particular  institutions  of  each  country,  to  be  applied, 
and  construed,  and  explained  by  its  own  particular  rules, 
there  could  be  no  reason  why  foreign  seamen  rescuing 
foreign  property  might  not  maintain  an  action  i7i  rem  be- 
fore a  court  of  the  law  of  nations,  sitting  in  the  country 
into  which  the  property  was  brought.  In  the  last  mention- 
ed instances,  the  claim  is  general  upon  the  general  ground 
of  quantum  meruit^  to  be  governed  by  a  sound  discretion 
acting  on  general  principles,  and  no  reason  can  be  seen  why 
one  country  should  be  afraid  to  trust  to  the  equity  of  the 
courts  of  another  on  such  a  question  so  to  be  determined. 
If  it  be  said  that  different  countries  may  have  different  pro- 
portions of  salvagej  and  therefore,  an  inconvenience  may 


MARITIME    CAPTURES    AND    PRIZES.  253 

arise  from  such  interference  :  it  is  answered  that  there  ex- 
ists no  rule  on  this  matter,  beyond  that  which  subjects  it 
to  a  sound  discretion,  distributing  the  reward  according 
to  the  value  of  the  services  that  have  been  performed. 
There  is  no  peculiar  rule  prescribed  in  the  British  and 
American  laws,  and  none  in  the  codes  of  other  nations  ap- 
plying to  the  cases  of  foreign  property  rescued.  This 
consideration,  thei-efore  forms  no  solid  objection  against 
the  exercise  of  the  jurisdiction,  and  there  is  great  reason 
for  it,  because  it  is  the  only  way  of  enforcing  the  best  secu- 
rity—that of  the  lien  on  the  property  itself.  (') 

The  French  Ordinance  of  1681  prescribes  that,  if  the 
vessel  not  having  been  recaptured,  is  abandoned  by  the 
enemy,  or  by  storms  or  other  accidents  returns  into  the 
possession  of  subjects  of  France,  before  being  carried 
into  an  enemy's  port,  she  shall  be  restored  to  the  former 
owner,  if  claimed  within  a  year  and  a  day,  although  the 
possession  of  the  enemy  may  have  coatinued  niiere  than: 
twenty-four  hours-^L.  3.  tit.  9.  art.  9.  Des  Prises. 

Upon  the  construction  of  this  article,  Valin  is  of  the 
opinion  that  it  should  be  likened  to  the  case  of  a  shipwreck, 
and  that  the  salvor  is  entitled  to  one  third  of  the  value  ft»c 
salvage  as  provided  in  the  twenty-seventh  article  of  the 
same  ordinance  Tit.  des  Naufrages,  To  which  Azuni  ob- 
jects that  the  ninth  article  being  silent  upon  the  subject  o£ 
the  payment  of  salvage,  this  omission  cannot  be  supplied 
by  a  reference  to  the  twenty-seventh,  which  relates  wholly 
to  goods  lost  by  shipwreck,  found  derelict  on  the  sea,  or 
drawn  up  from  its  bottom.  He  who  restores  to  the  ori- 
ginal owner  a  vessel  found  abandoned  on  the  high  seas, 
has  rendered  a  less  meritorious  service  than  he  who  ex- 
poses his  life  and  property  to  rescue  a  captured  vessel 
Ironi  the  hands   of  an  enemy.      The  reward  in  the  first 

,(>)  1,  Robinson,  2ri.    The  Two  Friends. 
*^  33 


254  LAW    OV  CHAP.  Vlll. 

case,  ought,  therefore  tobe  les§  than  in  the  second,  though 
proportioned  to  the  nature  and  extent  of  the  service  per- 
formed, yet  always  less  than  a  third  of  the  value  of  the  ar- 
ticles recovered.  (^) 

26.  In  the  case  of  property  found  derelict  which  has  been 
in  the  enemy's  possession,  as  well  as  in  that  of  a  rescue 
from  him,  our  municipal  law  has  prescribed  no  positive 
rule  as  to  the  amount  of  salvage  to  be  paid.  In  such  a 
case  therefore  the  amount  is  not  limited  by  the  act  of  Con- 
gress, but  may  be  enlarged  or  diminished,  in  the  discretion 
of  the  court,  according  to  the  particular  merit  of  the  ser- 
^yice  rendered.(') 

Where  an  enemy  vessel  was  taken  by  the  other  belliger- 
ent, and  abandoned  on  the  high  seas,  and  afterwards  fell 
Into  the  hands  of  a  neutral,  who  brought  her  into  a  port  of 
his  own  country,  it  was  determined  in  the  prize  court  of 
that  country  that  immpdtately  on  the  capture  the  captors 
acquired  such  a  right  as  no  neutral  nation  could  justly  im- 
pugn or  destroy ;  and  that  consequently  the  abandonment 
did  not  revive  the  right  of  property  in  the  original  propri- 
etor. The  prize  was  therefore  restored  to  the  captor  upon 
the  payment  of  salvage  to  the  neutral  salvor. T*") 

So  where  Great  Britain  and  France  were  at  open  war, 
and  two  French  frigates  captured  the  ship  in  question,  and 
after  taking  out  part  of  the  cargo  made  a  present  of  her  to 
the  libellants  in  the  cause,  citizens  of  the  United  States 
then  neutral  (whose  vessel  the  frigates  had  before  taken  and 
burnt)  by  whom  she  was  navigated  into  a  port  of  their  own 
country,  and  pending  the  suit  instituted  by  them,  war  was 
declared  between  the   United  States  and  Great  Britain,  a 

(i<)  Valin,  Sur  rOrdonnance,  L.  3.  tit.  9.  art.  9.  Des  Prises.  Azuni, 
part  2.  c.  4.  §  8. 

(1)  PcU'r^s  .1dm.  Bccisiona,  84.  Clayton  et  al.  vs.  the  Harmony.  1 
Iioliinson,270.     Tlic  Two  Friends.     Edwards  79.     The  Lord  Kelson. 

("')  3  Dallas,  188.  IVI'Donaough  vs.  Dannery  and  the  ship  Mary 
Ford. 


MARITIME    CAPTURES    AND    PRIZES.  255 

question  arose  whether,  this  was  a  case  of  salvage.  The 
fact  of  the  gift  was  established  by  a  writing  under  the  hand 
of  the  commander  of  the  squadron  of  frigates,  in  these 
words,  ye  donne  au  capitaine,  &c.  in  the  language  of  an 
unqualified  donation  inter  vivos.  In  this  case,  the  mosv 
natural  mode  of  acquiring  a  definite  idea  of  the  rights  oi 
the  parties  in  the  subject  matter,  would  be,  to  follow  it 
through  the  successive  changes  of  circumstances  by  which 
the  nature  and  extent  of  those  rights  were  affected.  The 
capture, — the  donation, — the  arrival  in  the  neutral  coun- 
try ,j— and  the  subsequent  state  of  war.  As  between  belli- 
gerents, the  capture  undoubtedly  produces  a  complete  di- 
vesture  of  property.  Nothing  remains  to  the  original  pro- 
prietor but  a  mere  scintilla  Juris  the  spes  reciLperandi* 
The  modern  and  enlightened  practice  of  nations  has  sub- 
jected all  such  captures  to  the  scrutiny  of  judicial  tribunals, 
as  the  only  practical  means  of  furnishing  docunientary  evi- 
dence to  accompany  vessels  that  have  been  captured,  for 
the  purpose  of  proving  that  the  seizure  was  the  act  of  so- 
vereign authority,  and  not  of  mere  individual  outrage.  In 
the  case  of  a  purchase  made  by  a  neutral.  Great  Britain  de- 
mands the  production  of  such  documentary  evidence  issu- 
ing from  a  court  of  competent  authority,  or  will  dispossess 
the  purchaser  of  a  ship  originally  British. (")  Upon  the 
donation,  therefore,  whatever  right,  might,  in  the  abstract, 
have  existed  in  the  captor,  the  donee  could  acquire  no  more 
than  what  was  consistent  with  his  neutral  character  to  take. 
He  could  be  in  no  better  situation  than  a  prize  master  na- 
vigating the  prize,  in  pursuance  of  orders  from  his  com- 
mander. The  vessel  remained  liable  to  British  recapture 
on  the  whole  voyage :  and,  on  her  arrival  in  a  neutral 
territory,  the  donee  sunk  into  a  mere  bailee  for  the  British 
claimant,  with  those  rights  over  the  thing  in  possession 

{^)  Robinson,  114,    Tlie  Flad  Oyer 


^56  llAW    OF  CHAP.  VIII. 

which  the  mutilcipal  law  (civil  and  cQinmon)  gives  for  care 
and  labour  bestowed  upon  it. 

The  question  then  recurs,  was  this  a  case  of  salvage  ? 

On  the  negative  of  the  proposition  it  was  contended, — 
that  it  was  a  case  of  forfeiture  under  the  municipal  law,  and 
therefore  not  a  case  of  salvage  as  against  the  United  States  ; 
that  it  was  an  unneutral  act  to  assist  the  French  belligerent 
in  bringing  the  vessel  infra  prcesidia^  or  into  any  situation, 
where  the  rights  of  recapture  would  cease,  and  therefore 
not  a  case  of  salvage  as  against  the  British  claimant. 

But  the  court  entertained  an  opinion  unfavourable  to 
both  those  objections. 

This  could  not  have  been  a  case  Avithin  the  view  of  the 
legislature,  when  passing  the  non-importation  act  of  March, 
1809.  The  ship  was  the  plank  on  which  the  shipwrecked 
mariners  reached  the  shore ;  and  although  it  might  be 
urged  that  bringing  in  the  cargo  was  not  necessarily  con- 
nected with  their  own  return  to  their  country,  yet,  upon  re- 
flection, it  will  be  found,  that  this  also  can  be  excused  upon 
fair  principles.  It  was  their  duty  to  adhere  strictly  to  their 
neutral  character ;  but  to  have  cast  into  the  sea,  the  cargo, 
the  property  of  a  belligerent,  would  have  been  to  do  him  an 
injury  by  taking  away  that  chance  of  recovery,  subject  to 
which,  they  took  it  into  their  possession.  Besides,  bring- 
ing it  into  the  United  States  did  not  necessarily  presup- 
pose a  violation  of  the  non-importation  laws.  If  it  came 
within  the  description  of  property,  cast,  casually  on  our 
shores,  as  the  court  were  of  opinion  it  did,  legal  provision 
existed  for  disposing  of  it  in  such  a  manner  as  woidd  com- 
port with  the  policy  of  those  laws.  At  last,  they  could  but 
deliver  it  up  to  the  hands  of  the  government,  to  be  re-ship- 
ped by  the  British  claimant,  or  otherwise  appropriated  un- 
der the  sanction  of  judicial  process.  And  such  was  the 
course  that  they  pursued.  Far  from  attempting  any  violation 
of  the  laws  of  the  country,  upon  their  arrival,  they  deliver- 
ed it  up  to  the  custody  of  the  laws,  and  left  it  to  be  dispo- 


MARITIME    CAPTUKES    AND    ViiLZhS.  257 

sed  of  under  judicial  authority.  The  case  had  no  feature 
of  illegal  importation,  and  could  not  possibly  have  imputed 
to  it  the  violation  of  municipal  la\v« 

As  to  the  question  arising  on  the  interest  of  the  British 
claimant,  it  would,  at  that  time  (war  having  supervened) 
be  a  sufficient  answer,  that  they  who  had  no  rights  in  the 
court,  could  not  urge  a  violation  of  their  rights  against  the 
libellants.  But  there  was  still  a  much  more  satisfactory 
answer.  To  have  attempted  to  carry  the  vessel  infra  pra- 
tfidia  of  the  enemy,  would,  unless  it  could  have  been  excu- 
sed on  the  ground  of  necessity,  have  been  an  unneutral  act. 
But  where  every  exertion  is  made  to  bring  it  into  a  place  of 
safety,  in  which  the  original  right  of  the  captured  would  be 
revived  and  might  be  asserted,  instead  of  aiding  his  enemy, 
it  is  doing  an  act,  exclusively  resulting  to  the  benefit  of 
the  British  claimant. 

It  being  determined  to  be  a  case  of  salvage,  the  next 
question  was,  as  to  the  amount  to  be  allowed.  On  this  sub- 
ject, there  is  no  precise  rule ;  nor  is  it,  in  its  nature,  redu- 
cible to  rule — For  it  must,  in  every  case,  depend  upon  pe- 
culiar circumstances  such  as  peril  incurred,  labour  sustain- 
ed, value  saved,  &c.  all  of  which  must  be  estimated  and 
weighed  by  the  court  that  awards  the  salvage.  When  a 
proportion  of  the  thing  saved  has  been  awarded,  a  half  has 
been  the  maximum,  and  an  eighth  the  77iinimum  ;  below 
that,  it  is  usual  to  adjudge  a  compensation  iji  numero.  In 
some  cases,  indeed,  more  than  a  half  may  have  been  award- 
ed ;  but  they  will  be  found  to  be  cases  of  very  extraordi- 
nary merit,  or  on  articles  of  very  small  amount.  In  this 
case  the  proceeds  of  the  sale  of  the  cargo  amounted  to  near 
six  thousand  dollars,  and  the  court  were  of  opinion  that  one 
half  of  that  sum  would  be  an  adequate  compensation. (°) 

(«)  Per  JoHusoK.  J;    The  Adventure,  Supreme  (Joxirt  of  tlie  U.  S.  Fe» 
bruary  T.  1814.    M.  S.     Fide  Supra,  C.  I,  §  5. 


2j8  law  of  chap.  IX. 


CHAPTER  IX. 

Of  the  jurisdiction  and  practice  of  Courts  of  Prize. 

1.  The  validity  of  maritime  captures  is,  with  certain  ex- 
ceptions, determined  in  courts  of  prize  established  in  the 
country  of  the  captor,  and  judging  by  the  law  of  nations.     ' 

2.  Among  these  exceptions  is  included  the  case  of  a 
neutral  power,  the  prize  courts  of  which  have  the  exclusive 
authority  of  determining  the  validity  of  captures  made  by 
the  cruisers  of  the  belligerents  within  its  territorial  juris- 
diction. 

Thus  by  the  laws  of  the  United  States  the  district  courts 
are  authorized  to  take  cognizance  of  complaints,  by  whom- 
soever instituted,  in  case  of  captures  made  within  the  wa- 
ters of  the  United  States,  or  within  a  maiine  league  of  the 
coasts  or  shores  thereof.  (*) 

3.  And  a  neutral  state  will  restore  the  property  of  pow- 
ers in  amity  with  it,  or  of  their  subjects  or  citizens,  taken 
by  armed  vessels  fitted  out  within  the  dominions  of  the 
neutral  state  in  violation  of  its  neutrality,  and  which  pro- 
perty is  brought  into  its  ports. (^) 

4.  So  also,  when  captured  property  is  brought  into  a 
neutral  portj  the  neutral  sovereign  or  state  will  restore  the 
property  of  its  own  subjects  or  citizens,  if  the  same  has 
been  illegally  taken  from  them.(*=) 

(*)  Vide  supra.  Chapter  II.  §  14. 
(")   Vide  supra,  Chapter  II.  §  7. 

(c)  Peters'  Admiralltj  Decisions,  S30,  ITollingsWortb  fit  al-  VS.  th^gCt- 
licy,  3  Dailat,  6.    Glass  et  al.  vs.  the  Betsey. 


MARITIME    CAPTURES    AND    PRIZES.  269 

Thus  by  the  French  ordinance  of  1681,  Liv.  .'?,  tit,  9, 
Des  Prises^  art.  15,  it  is  provided  that,  If  on  board  the  pri- 
zes brought  into  our  ports  by  ships  of  war  under  the  com- 
mission of  a  foreign  prince  or  state,  there  be  found  goods 
belonging  to  our  subjects  or  allies,  those  of  our  subjects 
shall  be  restored  to  them,  and  the  others  shall  not  be  stored, 
nor  purchased  by  any  person,  under  any  pretext  whatsoever. 
The  same  provision  is  contained  in  the  16th  article  of  the 
Spanish  ordinance  of  1718.  And  by  the  preceding  article 
of  the  French  ordinance  above  referred  to,  prizes  taken  by 
ships  of  war  under  a  foreign  commission,  are  forbidden  from 
remaining  more  than  twenty-four  hours  in  the  ports  of 
France,  unless  they  are  detained  by  tempests,  or  unless  the 
prize  xuas  taken  from  the  enemies  of  France.  In  his  com- 
mentary upon  these  articles,  Valin  expresses  an  opinion 
that  it  is  immaterial  whether  the  prize  be  taken  by  the 
cruisers  of  an  ally  or  confederate  of  France,  or  from  a 
common  enemy  by  a  co-belligerent  with  whom  there  is  no 
subsisting  treaty  of  alliance ;  for  in  either  case  the  goods 
of  the  prize  may  be  stored,  aird  purchased  with  safety  by 
any  person. 

5.  But  subject  to  these  exceptions,  the  right  of  property 
acquired  by  capture  continues  in  the  captors  who  have 
brought  their  prize  into  a  neutral  port,  or  within  the  ter- 
ritorial jurisdiction  of  a  neutral  power.  For,  though  the 
civil  right  of  property  in  the  prize  may  not  be  vested  in 
the  captor  until  a  sentence  of  condemnation,  yet  the  jjiili- 
iary  right  of  property  which  is  evidenced  by  possession  is 
completely  vested  in  him  by  the  capture.  By  what  right 
then  shall  the  neutral  sovereign  who  is  the  friend  of  the 
captor,  take  from  him  those  things  which  belong  to  him, 
jure  belli ^  and  give  them  up  to  another,  though  he  be 
equally  his  friend  ?  He  cannot  do  it  by  his  courts  of  jus- 
tice, for  he  cannot  lawfully  judge  between  the  captor  and 
his  enemy,  without  the  consent  of  both.  But  the  neutral 
5s  !>ound  to  see  ri^ht  wlicrcvcr  he  sees  possession  ',  he  is 


U60  V.AW    OF  CHAP.    IX. 

bound  to  take  tht  fact  for  the  lazv.     If,  tlicrefore,  a  vessej, 

after  capture,  should  cscajje,  or  be  brought  into  a  neutral 

territory  by  others  than   the  captor,  his  agents,  or  those 

v/ho  otherwise  lawfully  claim  under  him,  as   there  is  in* 

*  .  "  .  ... 

longer  any  legal  evidence  of  the  military  right,  no  fact 

which  is  to  ht  taken  for  laxi\  the  civil  right  of  the  former 

owner  revives,  and  the  property  returns   to  him  by  the 

law  oi postliminium.     It  is  however  to  be  understood  that 

in  case  the  property  has  been  regulaily  condemned  in  the 

proper  court,  such   a  condemnation  converts  the  military 

into  a  civil  right,  and  precludes  the  operation  of  the  law 

o^ postliminium  in  favour  of  the  original  owner.(^) 

6.  It  is  the  opinion  of  many  writers  of  authority,  that 
the  belligerents  have  not  only  a  right  of  asylum  in  neutral 
ports,  but  that  they  have  a  right  to  sell  in  those  ports  their 
prizes,  and  to  recover  and  appropriate  to  themselves  the 
proceeds  of  the  same.  But  unless  it  is  permitted  by  the 
municipal  law  of  the  neutral  country  impartially  to  all  the 
belligerents,  or  exclusively  allowed  to  one  or  more  by  spe- 
cial treaty,  there  seems  to  be  nothing  in  the  principles  of 
public  law  which  can  prevent  the  neutral  from  withholding 
it  entirely.  Thus  by  the  French  law,  as  we  have  seen  be- 
fore, the  sale  of  prizes  taken  from  powers  in  amity  with 
France,  and  brought  into  her  ports,  is  expressly  forbid- 
den; and  Valin  remarks  upon  this  prohibition  that  it  is 
founded  upon  the  laws  of  neutrality.  Vide  Bee's  Adm. 
Reports,  263. Consul  of  Spain,  vs.  consul  of  Great  Britain. 

7.  Another  exception  to  this  general  rule,  that  the  validity 
of  maritime  captures  is  determined  in  courts  of  prize  esta- 
blished In  the  cowitry  of  the  captor^  is  to  be  found  in  the  case  of 
prizes  carried  into  a  i)ortof  an  ally  in  the  war,  or  of  a  co-bel- 
ligerent, and  adjudicated  upon  by  a  consular  tribunal  of 
the  captor's  nation  established  in  the  country  of  the  ally  or 
co-bcUigertnt.  Tlie  exercise  of  such  a  jurisdiction  on  the 
part  of  the  consul  of  a   foreign,  though  fiendhj  power,  is 

('•')    /;(/  I'uncraui  liijnlnnih'ich,  Q.  J.  P.  I-   1.  C,  IJ. 


MAKITIME    CAPTURES    AND    PRIZES.  261 

unquestionably  unlawful,  unless  it  be  expressly  permitted 
by  treaty.  But  if  the  ally  or  co-belligerent  chuse  to  waive 
his  strict  rights  of  sovereignty  for  this  purpose,  other  par- 
ties cannot  complain  of  it,  since  he  thereby  violates  no 
duty,  as  a  neutral  would  do  in  a  like  case.  C^) 

8.  Subject  to  these  exceptions  the  validity  of  maritime 
captures  is  always  determincdin  courts  of  prize  establish- 
ed in  the  country  of  the  captor  ;  and  that  whether  the  pro- 
perty is  carried  into  his  own  port  or  a  pdrt  of  an  ally  or 
co-belligerent,  or  whether  it  be  carried  into  a  neutral  port^ 

9.  And  respecting  the  first  case  there  can  be  no  doubt. 
In  the  second  case  (where  the  property  is  carried  into  the  port 
of  an  ally,  or  co-belligerent)  there  is  nothing  to  prevent  the 
government  of  the  country  from  permitting  the  exercise  of 
that  last,  and  crowning  act  of  hostility,  the  condemnation  of 
the  property  of  one  belligerent  to  the  other ;  there  is  a  com- 
mon intei'est  between  the  two  governments,  and  both  may 
be  presumed  to  authorize  any  measures  conducing  to  give 
effect  to  their  arms,  and  to  consider  each  others'  ports  as 
mutually  subservient.  Such  an  adjudication  is  therefore 
sufficient  in  regard  to  property  taken  in  the  course  of  the 
operations  of  a  common  war.  {^) 

10.  But  where  the  property  is  carried  into  a  neiitralporty 
it  may  appear  more  doubtful  whether  the  validity  of  the 
'capture  can  be  determined  even  by  a  court  of  prize  estab- 
lished in  the  captor's  country.  It  may  be  said,  that  on 
principle,  the  security  and  consummation  of  the  capture  is 
as  complete  in  a  neuti'al  port,  as  in  the  port  of  the  belliger- 
ent himself.  On  the  mere  principle  of  security,  it  may  per- 
haps, be  so;  but  it  is  to  be  remeitibered,  that  this  is  a  matter 
not  to  be  governed  by  abstract  principles  alone :  The  use  and 
practice  of  nations  have  intervened,  and  shifted  the  matter 
irom    its  foundations  of  that  species  :       The   expression 

i.e)  2  Robinso7i,  210.  In  J\'otis.  3  liobinson,  333.  The  Cosmopolite, 
:0  3  ^&^i«w>  209.  The  Christopher. 

34 


262  LAW    oj?  CHAP,  ix'' 

"vvhich  Giol'ius  uses  on  these  occdisions  placuk  gentibus^  is 
perfectly  correct,  intimating,  that  there  is  a  use  and  prac- 
tice of  uatibrls  to  which  we  are  now  expected  to  conform. 
Without  entering  into  a  discussion  of  the  various  opinions 
that  have  been  thrown  out  on  this  subject,  the  better  opin- 
ion and  practice  may  be  stated  to  have  been,  that  a  prize 
iihould  be  brought  infra  prccsidia  of  the  capturing  country, 
where,  by  being  so  brought,  it  may  be  considered  as  in- 
corporated into  the  mass  of  national  stock.  The  greatest 
exceptions  that  have  been  allowed,  has  not  carried  the  rule 
beyond  the  ports  or  places  of  security,  belonging  to  some 
friend  or  ally  in  the  war,  who  has  a  common  interest  in  dc' 
fending  the  acquisitions  of  the  belligerent,  made  from  the 
common  enemy  of  -both.  In  latter  times,  an  additional 
formality  has  been  required,  that  of  a  sentence  of  condem- 
nation in  a  competent  court,  decreeing  the  capture  to  have 
been  rightly  made  jure  belli ;  it  not  being  thought  fit,  in 
civilized  society,  that  property  of  this  sort  should  be  con- 
Verted  without  the  sentence  of  a  competent  court,  pro- 
nouncing it  to  have  been  seized  as  the  property  of  an 
efiemy,  and  to  be  now  become  jure  belli  the  property  of 
the  captor.  The  purposes  of  justice  require,  that  such  ex- 
ercises of  war  should  be  placed  under  public  inspection  ; 
and  therefore  the  mere  ckdiictio  inj'ra  pra'sidia  has  not  been 
deemed  sufilcient.  From  the  moment  that  a  sentence  of 
condemnation  becomes  necessary,  it  imposes  an  additional 
obligution  for  bringing  the  property,  on  which  it  is  to  pass, 
into  the  country  of  the  captor  ;  for  a  legal  senteiice  must 
be  the  result  of  legal  proceedings,  in  a  legitimate  court, 
armed  with  competent  authority  upon  the  subject  matter, 
:uid  upon  th'.'  parties  concerned — -a  court  which  has  the 
me^ws  of  pursuing  the'  proper  enquiry,  and  enforcing  its 
tlc.cis'ipns.  These  are  principles  of  universal  jurisprudence 
applicable  to  all  courts,  and  more  especially  to  those  which 
by  their  constitution,  in  all  countries,  must  act  in  rem,  upon 
the  corpwi  or  substj\ncc  of  the  thing  acquired,  and  upon 


MARITIME    CAPTUniiS    AND    rillZKS,  2GJ. 

the  parties,  one  of  whom  is  not  subject  to  other  rights  than 
those  of  war,  and  Is  amenable  to  no  jurisdiction,  but  such  as 
belongs  to  those  who  possess  the  rights  of  war  against  him- 
Upon  principle,  therefore,  it  is  not  to  be  asserted,  that  a 
ship  brought  Into  a  neutral  port,  is  witli  efiect  proceeded 
against  in  the  belligerent  Country.  The  res  ipsa^  the  ccr- 
pus^  is  not  within  the  possession  of  the  court ;  and  posses- 
sion, in  such  cases,  founds  the  jurisdiction,  Wliat  is  tlie 
authority  over  the  parties?  Over  the  captors  it  is  com- 
plete, on  account  of  their  personal  relation  to  the  belligerent 
country.  The  neutral  government  may  be  balled  upon,  in 
the  usual  mode  of  requisition  known  to  the  law  and  prac- 
tice of  nations,  to  enforce  upon  the  captors  the  orders  and 
decrees  of  the  state  to  which  they  belong.  But  how  v.ill  it 
be  maintainable  over  the  other  parties,  v/ho  are  not  suli- 
jects  either  of  the  neutral  or  belligerent  state,  and  are,  in 
respect  to  the  point  in  issue,  only  subject  tq  the  jurisdic- 
tion of  war  ?  The  belligerent  state  itself  has  not  the  mean; 
of  exercising  the  rights  of  \yar  over  them  directly  : — can  it 
call  on  the  neutral  state  by  requisition  so  to  do?  Mor.jt 
clearly  not.  The  neutral  state  has  nothing  to  do  with  the 
rights  of  force,  possessed  by  the  one  belligerent  against  the 
other;  it  has  nothing  to  do  with  the  enforcement  or  con- 
summation of  such  rights  ;  it  owes  to^both  parties  the  sim- 
ple rights  of  hospitality,  and  even  these  are  very  limited  in 
the  practice  of  most  civilized,  states.  By  llic  regulations 
of  France,  foreign  si lijis  are  forbidtlcn  to  enter  with  prizes 
into  the  ports  of  France,  except  in  cases  of  distress,  and 
then  they  are  permitted  to  slay  nn  longar'than  this  necessi- 
ty exists.  Valin  observes  on  this  .Article,  that  such  a  rule 
is  exactly  confoinnable  to  the  laws  of  neutrality  ;  and.  Hub- 
ner  admits  that  a  wise  hospitaUts^  will  not  he  exercised  be- 
yond this.  At  any  rate  the  neutral  state  can  have  no  com- 
pulsory jurisdiction,  to  exercise  upon  either  party,  upon 
questions  of  w,ar  depending  between  them  ;  nor  can  any 
such  jurisdiction  be  conveyc;!         •  '  ./  the  autliority'  qf  ohe 


204  LAAV  OF  LIIAP.  IX 

of  them.  Its  own  duties  of  neutrality  prevent  the  accept- 
ance of  any  belligerent  rights  ;  it  cannot  be  called  upon  by 
requisition  to  give  any  facility  or  convenience  to  the  one 
party,  to  the  prejudice  of  the  other,  much  less  to  apply 
liiodes  of  compulsion  to  the  one,  to  serve  the  hostile  purpo- 
ses of  the  other.  In  the  administration  of  a  jurisdiction  of 
this  kind,  the  enemy  who  is  vanqvuished,  is  not  only  a  ne- 
cessaiy  party,  but  likewise  a  necessary  witness,  according 
to  the  proceedings  of  all  countries.  Prisoners  are  necessa- 
ry witnesses  to  be  examined.  How  are  they  liable  to  be 
compelled  to  undergo  such  examination  ?  No  force  can  be 
applied  in  the  way  of  strict  or  continual  imprisonment  to 
compel  their  answers  to  interrogatories.  Their  refusal 
would  carry  no  consequence  of  legal  contumacy  with  it; 
for  legal  contumacy  can  only  exist,  where  a  legal  jurisdic- 
tion has  demanded  a  submission.  From  these  considera- 
tions it  should  seem  to  result,  that  in  the  case  of  a  ship  ly- 
ing in  a  neutral  country,  there  is  not  only  a  want  of  origin- 
al jurisdiction  in  the  belligerent  country,  Irom  the  want  of 
possession  ;  but  that  there  is  likewise  a  substantial  defect 
of. that  authority,  which  is  required  for  the  attainment  of 
justice,  and  which  is  essentially  necessary  to  give  effect  to 
the  ceremony  of  condemnation. (&) 

But  the  conclusiveness  of  these  reasonings  has  been  con- 
tested, and  the  practice  of  nations  sanctions  the  condemna- 
tion of  property  brought  into  neutral  ports-,  by  courts  of 
prize  established  in  the  country  of  the  captor.  I'he  regu- 
larity of  such  a  proceeding  has  therefore  been  maintainedj 
in  the  British  prize  courts,('')  and  in  those  of  the  United 
States.(')  And  by  the  French  Ordinance  of  the  eleventh 
March,  1705,  renewed  by  the  regulation  of  the  eighth. 
November,  1779,  the  cruisers  of  France  'were  permitted  to 

(")  4  Robin.-,on,  43-     The  Ileiirick  and  Maria. 

('')  Jb.  6  Jiobinson,  139.     Jn  jXotis. 

(0  4  Cranch,  241.  Rose  vs.  Ilimcly.  lb-  293-  Hudson  at  al-  Vs.  Guestier, 


MAlllTIIvIE    CAPTUHKS    AKD    rillZES'.  2(55 

can}  their  prizes  into  foreign  ports,  mid  there  to  dispose  of 
them,  iii~.der  the  superintendence  of  the  French  consuls, 
v/ho  were  directed  to  send  home  the  documentary  and  oth- 
er evidence  uecessiuy  for  their  adjudication. ('*)  For  the 
sovereign,  whose  officer  has  in  his  name  captured  a  vessel 
as  prize  of  war,  remains  in  possession  of  thai  vessel, 
und  has  full  power  over  her,  so  long  as  she  is  in  a  situation 
v.here  that  possession  cannot  be  rightfully  divested.  The 
fact  whether  she  is  an  enemy  vessel  or  not,  ought  however, 
to  be  judicially  enquired  intp  and  decided,  and  therefore 
the  property  in  a  neutral,  captured  as.,  an  enemy,  is  never 
changed  until  condemnation  is  passed  ;  and  the  practice  of 
nations  requires  that  the  vessel  shall  be  in  a  place  of  safety 
before  such  sentence  can  be  rendered. 

In  the  port  of  a  neutral  she  is  in  a  place  of  safety,  and 
the  possession  of  the  captor  cannot  be  lawfully  divested, 
because  the  neutral  sovereign,  by  himself  or  by  his  courts, 
cannot  take  cognizance  of  the  question  of  prize  or  no 
prize.  A  vessel  captured  as  prize  of  war  is,  then,  while 
lying  in  the  port  of  a  neutral,  still  in  the  possession  of  the 
sovereign  of  the  captor,  and  that  possession  cannot  be 
rightfully  divested.  Nor  is  the  objection,  that  his  courts 
can  take  no  jurisdiction  of  a  vessel  under  such  circumstan- 
ces, because  they  cannot  enforce  a  sentence  of  restitutiou, 
well  founded ;  since  the  possession  of  the  captair  is  in  prin- 
ciple the  possession  of  his  sovereign ;  he  is  commissioned 
to  seize  in  the  name  of  the  sovereign,  and  Is  as  much  an 
officer  appointed  for  that  purpose,  as  one  who  in  the  body 
of  a  county  serves  a  civil  process.  He  is  under  the  con- 
trol and  direction  of  the  sovereign,  and  must  be  consi- 
dered as  ready  to  obey  his  commands  legally  communica- 
ted through  his  courts.  It  is  true  that  in  point  of  fact 
truizers  are  often  commanded  by  men  who  do  not  feel  a 
due  respect  for  the  laws,  and  who  are  not  of  sufficient  res- 

(")  1  Cede  da  Prises,  557, 


266  rAw  or  chap.  ix. 

ponsibility  to  compensate  the  injuries  their  Improper  con- 
duct may  occasion ;  but  in  principle  they  must  be  consi- 
dered as  officers  commissioned  by  their  sovereign  to  make 
a  seizure  in  the  particular  case,  and  to  be  ready  to  obey 
his  legitimate  mandate  directing  a  restitution.  The  pro- 
perty, therefore,  may  be  restored  in  a  neutral  port,  and 
ivhether  it  may  or  may  not  be  sold  in  the  neutral  port,  the 
condemnation  may  change  the  property,  if  such  condem- 
nation be  valid.  The  difficulty  of  executing  the  sentence 
does  not,  then,  seem  to  afford  any  conclusive  argument 
against  the  jurisdiction  of  the  court  of  the  captor  over  pro- 
perty in  possession  of  the  captor,  but  lying  in  a  neutral 
port.(i) 

11.  These  courts  of  prize  arc  established  in  every  coun- 
try, according' to  the  municipal  constitution  of  each,  and 
there  is  in  all  a  superior  court  of  review,  consisting  of  the 
most  considerable  persons,  to  which  the  parties,  who  think 
themselves  aggrieved,  may  appeal ;  and  all  these  courts, 
whether  supreme  or  inferior,  judge  by  the  same  rule, 
which  is  the  law  of  nations.  And  it  is  the  duty  of  those 
tribunals,  though  they  are  established  in  the  belligerent 
country,  to  administer  with  indifference  that  justice  which 
the  law  of  nations  holds  out,  without  distinction,  to  inde- 
pendent states,  some  happening  to  be  neutral  and  some  to 
be  belligerent.  The  seat  of  judicial  authority  is  indeed, 
locally  there,  in  the  belligerent  country,  according  to  the 
known  law  and  practice  of  nations  :  but  the  law  itself  has 
no  locality.  It  is  the  duty  of  the  person,  who  sits  there, 
to  determine  the  questions  that  arise  exactly  as  he  would 
determine  the  same  questions  if  sitting  in  the  neutral  coun- 
try whose  rights  are  to  be  adjudicated  upon.('") 

(')  Crunch  4,  295.  Hudson  ct  al.  vs.  Gaestier.  Vide  1  Johnson,  471, 
"Wheelwright  v.  Dcpoystcr,  Contra.  In  that  case  it  was  determined  that 
prize  courts  cannot,  adjudicate  on  a  prize  lying  in  a  foreign  neutral  port- 
er out  of  the  jurisdiction  of  the  captor  or  jiis  ;dly. 

f™)  1  Robinson,  340.    The  Maria. 


MAUITIME    CAPTURES    AND    PRIZES.  267 

12.  Thus  in  France,  in  the  year  1659,  the  power  of  de- 
ciding prize-causes  wa:^  vested  in  a  council  of  prizes,  com- 
posed of  counsellors  of  state  and  masters  of  requests,  and 
presided  over  by,  the  admiral.  From  the  decisions  of  this 
tribunal  an  appeal  lay  to  the  king  in  council.  During  the 
revolution,  great  confusion  prevailed  in  the  administration 
of  prize  law,  until  the  re-establishment  of  the  council  of 
prizes  by  a  decree  ofthe  eighth  March,  1800,  which  is  now 
composed  of  a  counsellor  of  state,  as  president,  and  of  eight 
other  members,  this  court,  which  sits  at  Paris,  deter- 
mines all  litigated  prize  causes,  upon  simple  memoirs 
presented  by  the  parties  or  their  advocates.  The  delay  in 
bringing  a  cause  to  a  hearing  cannot  exceed  three  months, 
where  the  prize  has  been  brought  into  the  ports  of  the 
Mediterranean,  and  two  months,  if  brought  into  any  other 
of  the  ports  of  France ;  these  periods  being  reckoned  from 
the  day  on  which  the  papers  in  the  cause  are  lodged  in  the 
secretary's  ofEce.  An  appeal  lies  from  the  decisions  of  this 
court  to  the  council  of  state.  (^) 

At  the  first  session  of  the  council  of  prizes,  M.  Por- 
talis,  the  commissary  representing  the  French  governr 
ment  before  it,  delivered  the  following  address,  which  for 
the  soundness  of  its  principles  and  the  eloquence  of  its 
style  merits  to  be  recorded. 

"  A  wise  government,  which  feels  the  necessity  of  jus- 
tice, and  is  firmly  resolved  to  exercise  it,  has  called  us  to 
fulfil,  before  you,  citizens,  the  delicate  and  sublime  func- 
tions of  conscience.  It  has  constituted  us,  as  it  were,  the 
ministers  of  a  sacred  alliance  between  policy  and  morality. 
»' The  principles  of  morality  are  obligatory  as  well  up- 
on nations,  as  upon  individuals  :  they  form  the  common 
law  of  the  vmiverse.  But  between  different  nations  this 
law  is  deficient  in  those  sanctions  by  which  its  observance 
must  be  secured  ;  for  they  are,  in  relation  to  each  other. 


2*53  LAW    OF  tllAP.    IXi 

in  a  state  of  nature,  in  that  state^.where  every  individaal 
is  the  sovei-eign  arbiter  of  his  own  actions,  and  the  sLipremei 
judge  in  his  own  cause.  Hence  hostilities,  reprisals,  auc^  fre- 
quent wars  which  shake  empires  and  ravage  the  world. 

"  A  citizen,  besides  the  care  of  his  own  particular 
interest^  is  bound  to  labour  for  the  public  good  of  his 
country..  A  state,  besides  the  cars  of  its  own  interior  gov- 
ernment, is  charged  with  the  duty  of  contributing  to  the 
happiness  of  the  huHoan  race.  JJo^in  pcace^tlie-grtatcat 
possible  gcod ;  in  xuar^t/ie  least  possible  evil:  this  is  the 
law  qf  nations.  'I'he  principles  of  this  lav/  are  simple  : 
but  in.'  barbarous  and  ignorant  times  they  were  trampled 
under  foot  by  men  abandoned  to  the  influence  of  blind  and 
unregulated  passions.  In  these  latter  times,, those  passions 
have  been  softened  by  civilization  ;  but  t^ie  multitude  and 
contrariety  of  different  interests,  which  the  ideas  of  money, 
of  commerce,  of  national  wealth,  and  of  the  balance  of 
power,  have  introduced,  have  become  new  causes  of  emu- 
lation, of  ambition,  of  jealousy  and  of  enmity.  The  sci- 
ence of  government  not  being  perfected  in  proportion  to 
the  conflicting  interests  which  we  have  to  conciliate,  and 
the  difficulties  Vi'hich  we  have  to  vanquish,  it  happens,  that 
notwithstanding  tire  knowledge  we  have  acquired,  we  as 
yet  enjoy  but  partially  tlie  advantages  which  that  know- 
ledge seems  calculated  to  secure  us.  •  . 

"  The  laAV  of  war  is  founded  upon  the  principle  that  one 
naticn,  for  its  own  preservation  or  in  self  defence,  will, 
can,  or  ought,  to  do  violence  to  another.  It  is  a  relation  of 
things,  and  not  of  persons,  which  constitutes  Avar  :  it  is  the 
velution  of  state  to  state,  and  not  of  individual  to  individ- 
ual. J3«twecn  two  or  more  belligerent  nations,  the  indi- 
viduals of  which  they  are  composed,  are  enemies  by  acci- 
dent only:  they  are  not  such  as  men,  nor  even  as  citizens, 
they  aresacli  only  as  soldiers. 

"Let  us  dojiistlcc  to  our  philosophy,  Mdilch  according  to 
't?.  f' ip'lamentiil  truths,  ha,s  repeatedJy  called  upon  the  gov 


MARITIME    CAPTURES    AND    PRIZES.  26'9 

prnments  of  Europe,  to  stipulate  for  the  liberty  and  secu- 
rity of  commerce,  and  for  the  safety  of  the  productions  of 
the  arts  and  private  property,  in  time  of  war  ;  but  policy, 
\vhich  is  not  political  right,  has  hitherto  resisted  the  con- 
clusions of  philosophy.  It  must  at  the  same  time  be  ac- 
knowledged that  a  theory,  which  is  apparently  the  most 
perfect,  is  not  always  adapted  to  practice.  The  maxim  of 
the  wise  man  should  be,  not  to  aspire  after  that  absolute 
good,  which  the  nature  of  things  and  of  man  renders  inac- 
cessible, but  to  seek  for  that  relative  good  which  is  within 
our  reach,  which  is  indicated  by  experience,  and  which 
flows  from  rational  principles  adapted  to  the  wants  of  soci- 
ety. In  the  new  position  in  which  the  invention  of  the 
mariners  compass  and  the  discovery  of  America  have 
placed  the  world,  our  commercial  relations  have  become  the 
principal  source  of  wars.  It  is  for  the  interests  of  com- 
merce, well  or  ill  understood,  that  the  earth  is  deluged  in 
blood. 

"  A  great  revolution  must  therefore  be  effected  in  hu- 
man affairs  and  opinions,  before  we  can  hope  for  one  in 
policy. 

"It  may,  in  other  respects,  be  thought  that  the  inter- 
ruption of  commerce  between  belligerent  nations,  produces 
the  good  effect  of  connecting,  in  each  government,  the  dan- 
gers of  the  citizen  with  the  dangers  of  the  country ;  commu- 
nicates to  the  public  interest  all  the  force  and  energy  of 
private  interest ;  discourages  by  anticipating  that  waste  of 
resources  which  the  desire  of  conquest  and  vain  glory  must 
occasion  ;  checks  projects  of  aggrandizement  by  the  cer- 
tain evils  which  must  follow  them  ;  places  in  opposition 
the  inquietudeof  the  citizen  who  suffers  with  the  extrava- 
gance of  the  magistrate  who  governs  ;  and,  finally,  renders 
governments  more  careful  in  commencing  wars  and  more 
Avilling  to  terminate  them. 

*'  But  whatever  may  be  our  opinion  of  the  question, 
whether  commerce  should  be  prohibited,  or  should  rem*\in 

35 


370  iAW    Oi'  CHAP.  IX. 

free  between  the  belligerent  powers,  there  can  be  no  doubt 
that  neutral,  nations,  since  they  take  no  part  in  the  war, 
should  continue  to  enjoy  all  the  advantages  of  peace. 

*'  In  order  to  diminish  the  calamities  of  one  of  the  most 
terrible  scourges  which  can  afflict  humanity,  the  antients 
establislicd  and  consecrated  free  cities,  which  served  as  the 
asylums  of  commerce,  and  in  which,  in  the  midst  of  the 
most  bloody  hostilities,  industry  found  a  safe  retreat. 
Since  civilization  has,  if  I  may  so  speak,  added  new  na- 
tidns  to  the  human  race,  there  are  always  among  the  nu- 
merous nations  that  cover  the  globe,  some  who  are  interest- 
ed by  their  situation,  to  preserve  a  neutral  character  ;  and 
this  neutrality,  wh^ch  is  in  time  of  war,  the  sole  ligament 
of  social  relations  and  useful  intercourse  among  men, 
should  be  religiously  respected  as  a  real  public  good.  The 
belligerent  powers  are,  undoubtedly,  authorized  to  watch 
over  and  guard  against  the  frauds  of  a  feigned  neutrality^ 
If  a  known  enemy  be  always  manifest,  the  neutr^  may 
conceal  a  real  enemy  irndcr  the  robe  of  a  friend ;  .fte  is 
then  struck  by  the  law  of  war,  and  he  deserves  to  be. 
But  let  us  be  careful,  in  applying  this  severe  law,  to  re- 
tjpect  treaties,  the  usages  consecrated  by  the  uniform  prac- 
tice of  nations,  and  the  principles  which  guarantee  the 
sovereignty  and  independence  of  states.  Policy  may  have 
its  plans  and  its  mysteries  ;  but  reason  ought  to  preserve 
her  influence  and  dignity.  When  the  arbitrary  principles 
of  fear  and  necessity  govern  the  public  councils,  all  is  lost  f 
every,  species  of  violence  desolates  the  earth,  and  blood 
flows  in  torrents.  By  inspiring  terror,  we  may  momenta- 
rily increase  our  forces  ;  but  it  is  by  inspiring  confidence 
that  we  preserve  them  forever. 

"  I  felicitate  myself,  in  procl-aiming  these  principles,  to 
be  more  particularly,  by  my  functions  at  your  bar,  the  de- 
positary and  interpreter  of  the  intentions  of  government, 
and  to  be  aWe  to  join  my  feeble  voice  to  that  of  the  clo- 
«j[uent  and  cnlightcuc^  mii^istcr  who  has  already  pointed 


MARITIME    CAl'TUllE?.'    AXD    PRIZES.  3<1 

but  in  SO  able  a  manner  the  standard  of  our  duties  and  the 
course  of  our  labours.  We  have  great  interests  to  weigh, 
and,  perhaps,  great  errors  to  repair ;  but  your  knowledge 
and  your  zeal  will  preserve  you  above  reproach.  It  is  no 
part  of  our  duty  to  adhere  servilely  to  litigious  forms,  or 
to  yield  to  disgusting  subtleties.  The  French  captors  who 
will  come  before  you  are  the  representatives  of  the  gov- 
ernment; for  the  privilege  of  cruising  is  only  a  grant  un- 
der the  law  of  war  from  the  sovereign  to  the  indrviduals 
who  devote  themselves  to  these  perilous  enterprises.  Qn 
the  other  hand,  the  foreigners  whose  fortunes  will  be  af- 
fected*by  j'our  decisions,  cannot  separate  their  cause  from 
that  of  the  nations  of  whom  they  form  a  part.  It  would, 
therefore,  as  the  Roman  orator  formci-ly  observed,  l)e  ri- 
diculous to  pretend  to  decide  the  rights  of  nations  and  the 
world  by  the  same  petty  standard  which  we  apply  to  the 
disputes  of  individuals  concerning  the  minutest  article  of 
property.  War  is  a  necessary,  lawful,  and  lamentable 
ri^ht,  which  always  leaves  an  immense  debt  to  be  paid  to 
humanity.  But  let  justice  and  peace  embrace  each  other, 
and  already  the  greater  part  of  the  calamities  of  war  are 
repaired. 

"  The  hero  of  France,  now  become  the  first  magistrate 
of  the  Republic,  has  just  placed  his  victories  and  his  name 
above  the  reach  of  envy,  by  making  proposals  of  pejice  to 
the  belligerent  nations,  and  professing  justice  to  all.  Let 
us  associate  ourselves  to  the  great  and  salutary  conceptions 
of  his  mind.  Equity  is  the  virtue  of  empires.  Modera- 
tion is  the  wisdom  of  great  nations,  as  well  as  of  great 
r.icn.  Let  us  be  mindful  that  if  vvar  destroys  the  people, 
a  false  policy  impedes  their  prosperity,  and  may  even  pre- 
vent their  multiplication.  We  have  astonished  and  sha- 
ken Europe  by  the  fame  and  strength  of  our  arms  :  it  is 
time  to  revive  her  confidence  by  our  nrincinles.  i'.nd  to 
console  her  bv  our  virtues."  t 


272  LAW    OF  CHAP.  IX. 

Happy  V'ould  it  have  been  for  the  world  h:id  these  prin* 
ciples  continued  to  animate  France  and  the  o^her  belliger- 
ent powers  !  We  should  not  have  then  seen  issued  those 
edicts,  b}'-  which  the  law  of  nations  was  trampled  upon, 
and  neutrals  compelled  to  become  belligerents  in  order  to 
protect  theit  rights,  whilst  the  calamities  of  war  were  exr 
tended  to  every  quarter  of  the  globe. 

13.  The  courts  of  prize  in  the  British  empire  are  the 
High  Court  of  Admiralty  in  England,  and  the  Vice  Ad- 
miralty courts  in  the  colonies,  from  which  appeals  lay  to 
the  Lords  Commissioners  of  Appeal  in  prize  causes,  con- 
sisting of  the  privy  counsellors  and  the  judges  ofthelcourts 
of  Westminster  hall. 

14.  The  .courts  of  prize  v/hich  were  established  in  the 
United  States,  during  the  war  of  the  revolution  were  as 
follows.  On  the  25th  of  November,  1775,  Congress  re- 
solved that  it  should  be  recommended  to  the  several  legis- 
latures in  the  United  Colonies  to  erect  coui-ts  of  justice,  or 
to  give  jurisdiction  to  the  courts  then  in  being,  foi^f  die 
purpose  of  determining  concerning  the  captures  of  British 
property  which  had  been  authorised,  and  to  provide  that 
all  trials  in  such  case  be  had  by  a  jury,  under  such  qualifi- 
cations, as  to  the  respective  legislatures  should  seem  expe- 
dient ;  ^nd  that  an  appeal  should  be  allowed  to  Congress, 
or  to  such  persons  as  they  should  appoint  for  the  trial  of 
appeals.  On  the  30th  January,  1 777 ^  Congress  resolved, 
that  a  standing  committee,  to  consist  of  five  members,  be 
appointed  to  hear  and  determine  upon  such  appeals.  By 
the  articles  of  confederation  dated  the  9th  of  July,  1778, 
and  ratified  by  all  the  States  on  the  1st  March,  ]781,  the 
United  States  were  vested  with  the  sole  and  exclusive 
power  of  establishing  courts  for  receiving  and  determine 
ing  finally  appeals  in  all  cases  of  captures.  Such  a  court 
was  established  by  the  style  of  the  Court  of  Appeals  in. 
Caaes  of  Capture,  and  on  the  24th  of  May,  1 780,  the  cog- 
nizance of  appeals  Uien  pending  before   Congrcs,  or  the 


MARITIME    CAPTURES       AND    PRIZES.  273 

commissioners  of  appeals  consisting  of  members  of  Congress, 
was  refefe-ed  to  the  courtof  appeals  thus  established.  The 
records  and  proceedings  of  this  court  are  deposited  in  the 
office  of  the  clerk  of  the  supreme  court  of  the  United  States. 

The  cognizance  of  all  causes  of  admiralty  and  maritime 
jurisdiction  is  now  vested  in  the  district  courts,  ("*)  from 
which  an  appeal  lies  to  the  circuit  court  where  the  subject 
.matter  in  controversy  is  of  the  value  of  five  hundred  dol- 
lars, and  from  thence  to  the  supreme  court  where  it  is  of 
the  value  of  two  thousand  dollars. 

By  the  prize  act  of  June  26th  1812,  which  subsisted 
fluring  the  late  war  with  Great  Britain,  it  was  provided. 
Sec.  6,  that  in  the  case  of  all  captured  vessels,  goods  and 
effects,  which  shall  be  brought  within  the  jurisdiction  of  the 
United  States,  the  district  court  of  the  United  States  shall 
have  exclusive  original  cognizance  thereof,  as  in  civil 
causes  of  admiralty  and  maritime  jurisdiction  ;  and  the 
s^id  courts,  or  the  courts  being  the  courts  of  tl^e  United 
States,  into  which  such  causes  shall  be  removed,  and  in 
tvhich  they  sliall  be  finally  decided,  shall  and  may  decree 
restitution,  in  whole  or  in  part,  when  the  capture  shall 
have  been  made  without  just  cause.  And  if  made  without 
probable  cause,  or  otherwise  unreasonably,  may  order  and 
decree  damages  and  costs  to  the  party  injured  and  for 
which  the  owners  and  commanders  of  the  vessels,  making 
such  captures,  and  also  the  vessels,  shall  be  liable.  But 
these  provisions  seem  to  have  been  superfluous  :  For  by 
the  constitution,  the  judiciary  power  is  extended  to  all 
cases  of  admiralty  and  maritime  jurisdiction  j  the  law 
had  already  vested  the  jurisdiction  of  such  cases  in  the 
district  courts  ;  and  it  is  clear  that  prize  causes  are  inclu- 
ded in  this  general  term  ;  whilst  courts  of  prize  from  their 
very  nature  and  constitution  are  cloathed  with  the  above 
mentioned  powers  of  decreeing  re^tution  and  awarding 
(Costs  and  damages. 

{«)  3  Dallasf  6.  Glass  et  al.  vs.  The  Betsey  et-sl. 


274  hxvf  or  CH\p.  IX. 

15.  The  judgments  or  sentences  of  the  courts  of  prize, 
thus  having  authority  to  determine  the  validity  of  mari- 
time captures,  are  conclusive  as  to  the  title  of  property  in 
the  thing  which  is  the  subject  matter  of  adjudication  in  such 
courts.  A  legal  condemnation^  is  therefore  an  essential 
muniment  of  the  tide  of  a  neutral  purchaser  of  captured 
property,  without  which  he  is  liable  to  be  evicted,  (p) 

16.  Where  a  vessel  had  been  captured  contrary  to  the 
letter  of  the  President's  instructions  of  the  28th  August, 
1812,  commanding  &c.  not  to  interrupt  any  vessels  be- 
longing to  citizens  of  the  United  States  coming  from  Bri- 
tish ports  to  the  U.  S.  laden  with  British  merchandize  in 
consequence  of  the  alleged  repeal  of  the  British  order  in 
council — ^The  ship  was  condemned  in  the  court  below  for 
want  of  a  claim  :  This  sentence  was  relied  on  by  the 
captors  as  establishing  the  fact,  and  consequently  as  de- 
priving the  car^^o  of  the  benefit  of  exemption  from  capture 
as  not  being  in  a  vessel  bekng'ing  to  citiz€7is  of  the  United 
States. 

The  conclusive  effect  which  the  captors  would  have  gi- 
ven to  this  sentence  was  founded  in  part  on  reasoning  which 
is  technical,  and  in  part  on  the  operation  which  the  fact 
itself  ought  to  have  on  the  human  mind  in  producing  a 
conviction  that  the  claim  was  not  filed  because  it  could  not 
be  sustained. 

A  sentence  of  a  court  of  admiralty  is  said  not  only  to 
bind  the  subject  matter  on  which  it  is  pronounced,  but  to 
prove  conclusively  the  facts  which  it  asserts.  This  prin- 
ciple has  been  maintained  in  the  courts  of  municipal  law 
in  England,  particularly  as  applying  to  cases  of  insurance, 

(r)  1  Rohimon,  102.  lb-  135.  The  Flad  Oyen.  5  Jiohinsov,  294, 
Nostra  de  Conccicas.  2  Burroiv,  694.  Goss  v.  Withers.  2  Dallas,  1.  5. 
Miller  et  al.  v.  the  Resol^ion.  3  Da^Zas,  86,  Penhallow  et  al.  v.  Do- 
anc'a  Adm.  In  thi.s  last  case  it  was  dcte:*niincd  tliat  the  district  court 
has  jurisdiction  to  ca»ry  into  execution  a  decree  of  the  late  congres- 
sional Court  of  Comii(#sioncrs  of  Appeal  in  prize  causes.  Vi^^^  4  No- 
iintoUi  360.    The  ricimcnto. 


MARITIME    CAPTURES    AND    PRIZES.  27'» 

and  has  been  adopted  by  the  Supreme  Court  of  the  United 
States. (1)     Its  application  to  this  case  was  considered. 

The  ship  was  riot  condemned  by  the  sentence  of  a  fo- 
reign court  of  admiralty,  ill  a  case  prior  to  and  distinct 
from  that  in  which  the  cargo  was  libelled.  She  was  com- 
prehended in  the  same  libel  with  the  cargo.  The  whole 
subject  formed  but  one  cause,  and  the  whole  came  on  to- 
gether for  adjudication  before  the  same  judge.  By  the 
rules  of  the  court  the  condemnation  of  the  ship  was  inevi- 
table, not  because  in  fact  she  was  enemy's  property,  but 
because  the  fact  was  charged,  and  was  not  repelled  by  the 
owner,  he  having  failed  to  appear  and  to  put  in  his  claim. 
The  judge  could  not  close  his  eyes  on  this  circumstance; 
nor  could  he,  in  common  justice,  subject  th«  cargo,  which 
was  claimed  according  to  the  course  of  the  court,  to  the 
liabilities  incurred  by  being  carried  in  a  hostile  bottom. 
In  the  same  cause,  a  fact  not  controverted  by  one  party 
(who  does  not  appear),  and  therefore  as  to  him  taken  for 
*^' Confessed,  ought  not,  on  that  implied  admission,  to  be 
brought  to  bear  upon  another  who  does  appear,  does  con- 
trovert, and  does  disprove  it.  The  owners  of  the  cargo 
had  no  control  over  the  owners  of  the  vessel.  The  for- 
mer could  not  force  the  latter  to  file  a  claim,  nor  could 
the  latter  file  a  claim  for  the  former.  The  evidence  that 
the  ship  was  the  property  of  a  citizen  of  the  United  States 
could  not  be  lodked  into  so  far  as  respected  the  rights  or 
her  owner,  because  he  was  in  contumacy  ;  but  the  owner 
of  the  cargo  was  not  in  contumacy.  He  was  not  culpable 
on  account  of,  .and  therefore  ought  not  to  suffer  for, 
the  contumacy  of  the  ship  owner.  That  contumacy  in 
reason  and  in  justice  ought  not  to  have  prevented  the 
court  below  from  looking  hito  the  testimony  concerning 
proprietary  interest  in  the  ship,  so  far  as  the  rights  of 
Other  claimants  depended  upon  that  interest.  If  we  rea- 
son from  analogy,  we  find  no  princid^  adopted  by  the 

(i)  Croudson  and  others,  vs.  Leonard.    Cranch^s  Hep 


27 (>  J.  A  vv     (U'  CHAP.   IK* 

municipal  courts  o[  lavv  or^^quity  v.hich,  in  its  application 
to  courts  of  admiralty,  would  seem  to  subject  one  .claim- 
ant to  injury  from  the  contumacy  of  another.  A  judg- 
ment against  one  defendant  for  want  of  a  p^f  a,  or  a  de- 
cree against  one  defendant  for  want  of  an  answer,  does  not 
prevent  any  other  defendant  from  contesting,  so  far  as  res- 
pect|  J^mself,  the  very  fact  which  is  admitted  by  the  ab- 
sent party.  No  reason  exists  why  a  different  rule  should 
prevail  in  a  court  of  admiralty. 

If  the  court  below  was  not  precluded  by  the  non-claim  ol' 
the  owner  of  the  ship  from  examining  the  fact  of  owne;- 
ship,  so  far  as  that  fact  could  affect  the  cargo^  it  would  not 
be  contended  that  an  appelate  court  might  not  likewise  exa 
mine  it. 

This  case  is  to  be  distinguished  from  those  which  have 
been  decided  on  policies  of  insurance,  not  only  by  the  cir- 
cumstance that  the  cause  respecting  the  ship  and  the  cargo 
came  on  at  the  same  time,  before  the  same  court,  but  by 
oiher  differences  in  reason  and  in  law  which  appear  to  be 
essential. 

The  decisions  of  a  court  of  exclusive  jurisdiction  are 
necessarily  conclusive  on  all  other  courts,  because  the  sub- 
ject matter  is  not  examinable  in  them.  With  respect  to  it- 
self, no  reasOfl  js  perceived  for  yielding  to  them  a  fuHhcr 
conclusiverie'ss  than  is  allowed  in  the  judgments  and  de- 
crees of  the  municipal  courts  of  common  law  and  equity. 
They  biiKl  the  subject  matter  as  between  parties  and 
privies.. 

The  whole  world,  it  is  said,  are  parties  la  a  prize  cause, 
riud  therefore  the  whole  world  is   bound  by   the    decision. 

The  reason  on  which  this  dictum  ^v^wds  will  determine 
the  extent  of  its  application.  Every  person  may  make 
liimseltaparty,  and  appeal  from  the  sentence.  But  notice 
of  the  controversy  is  necessary  in  order  to  become  a  party, 
and  itris  a  i)rincipl>|^of  natural  justice,  and  of  universal  ob- 
ligation, that  before  the  rights  of  an  individual  be  bound  by 


MARITIME    CAPTURES    AND    PRIZES.  27'/' 

n  judicial  sentence,  he  shall  have  notice,  either  actual  oi; 
implied,  of  the  proceedings  against  him.  Where  these 
proceedings  are  against  the  person,  notice  is  served  person- 
ally, or  by  publication  ;  there  they  are  i7i  rem^  notice  is 
served  upon  the  thing  itself.  This  is  necessarily  notice  to 
all  those  who  have  any  interest  in  the  thing,  and  is  reason- 
able because  it  is  necessary,  and  because  it  is  the  part  of  com- 
mon prudence  for  all  those  who  have  any  interest  in  it, 
to  guard  that  interest  by  persons  who  are  in  a  situation  to 
protect  it.  Every  person  there  lore  who  could  assert  any 
title  to  the  vessel,  had  constructive  notice  of  her  seizure, 
and  may  be  fairly  considered  as  a  party  to  the  libel.  But 
those  who  had  no  interest  in  the  vessel  which  could  be  as- 
serted in  the  court  of  admiralty,  had  no  notice  of  her  seiz- 
ure, and,  can  on  no  principle  of  justice  or  reason,  be  consi- 
dered as  parties  in  the  cause,  so  far  as  respects  the  vesseL 
When  such  a  person  is  brought  before  a  court  in  which  the- 
fact  is  examinable,  no  sufficient  reason  is  perceived  for  pre- 
cluding him  from  re-examining  it.  The  judgment  of  a 
court  of  common  law  or  the  decree  of  a  court  of  equity 
would,  under  such  circumstances,  be  re-examinable  in  £^ 
court  of  common  law,  or  a  court  of  equity  ;  and  no  reasorl 
is  discerned  why  the  sentence  of  a  court  of  prize,  under  th^ 
same  circumstances,  should  not  be  re-examinable  in  a 
court  of  prize.  '-f 

Tiiis  reasoning  is  not  at  variance  with  the  decision  that 
the  sentence  of  a  foreign  court  of  admiralty  condemning  a 
vessel  or  cargo  as  enemy's  property,  is  conclusive  in  an  ac- 
tion against  the  underwriters  or  a  policy  in  which  the  pro** 
pert/  is  warranted  neutral.  It  is  not  at  variance  with  that 
decision,  because  the  question  of  prize  is  one  of  which  courts 
of  municipal  law  have  no  direct  cognizance,  and  because 
the  owners  of  the  ship  and  cargo  were  parties  to  the  libel 
against  them. 

In  he  case  above  cited,  the  reasons  assigned  for  the  conclu- 
siveness of  a  foreign  sentence  were—the  propriety  of  lec.v- 

36 


278  LAW    OF  CTIAP.  IX. 

ing  the  cognizance  of  prize  questions  exclusively  to  courts  of 
prize  jurisdiction ;  the  very  great  inconveniencs^  amounting 
nearly  to  an  impossibility,  of  fully  investigating  such  cases  in 
courts  of  common  law  ;  and  the  impropriety  of  revising  the 
decisions  of  the  maritime  courts  of  other  nations  whose 
jurisdiction  is  coordinate  throughout  the  world.  All  the 
%vorld  are  parties  in  an  admiralty  cause.  The  proceedings 
are  in  rem  ;  but  any  person  having  any  interest  in  the  pro- 
perty may  interpose  a  claim  and  may  prosecute  an  appeal 
from  the  sentence.  The  insured  is  emphatically  a  party, 
and  in  every  instance  has  an  opportunity  to  controvert  the 
alleged  grounds  of  condemnation  by  proving  if  he  can  the 
neutrality  of  the  property.  The  master  is  his  immediate 
agent,  and  is  also  bound  to  act  for  the  benefit  of  all  concern- 
ed, so  that  in  this  respect  he  also  represents  the  in6iu*er. 

These  reasons,  though  they  undoubtedly  support  the  de- 
cision founded  on  them,  are  inapplicable  to  the  solution  of 
this  question.  The  very  foundation  of  the  opinion  that  the 
Insured  is  bound  by  the  sentence  of  condemnation  is,  that 
he  was  in  law  a  party  to  the  suit,  and  had  a  full  opportu- 
.  nity  to  assert  his  rights.  This  decision  cannot  be  applica- 
ble to  one  in  which  the  person  to  be  affected  by  it  was  nor 
and  could  not  be  a  party  to  it.(') 

ir.  And  the  jurisdiction  of  these  courts  extends  as  well 
to  goods  taken  on  land  by  a  naval  force,  or  in  consequence 
of  the  operations  of  a  naval  force,  as  to  property  cap- 
tured on  the  water.  As  to  plunder  or  booty  in  a  mere 
continental  land  war,  without  the  presence  or  interven- 
tion of  anv  ships,  it  never  has  given  rise  to  any  legal 
question.  It  is  often  given  to  the  soldiers  upon  the  spot, 
cvr  wrongfully  taken  by  them,  contrary  to  military  discipline. 
If  there  is  any  dispute,  it  is  regulated  by  the  commander  in 
.chief.     But  if  the  jurisdiction  of  prize  courts  did  not  ex- 

(')  I'cr  MAllliJ/.f  r.  r  J  'Hic  IMnn  .  Supreme  Court  of  tjic  U.  S.  Fc- 
brtiary  T.  1815.    M.  «, 


MARITIME    CAPTURES    AND    PRIZES.  279 

tend  to  a  capture  on  shore,  by  a  naval  force,  or  in  conse- 
quence of  the  operations  of  a  naval  force,  the  inconvenience 
would  be  great,  to  the  captors;  to  the  claimants;  and 
to  the  state.  Tiic  captors  are  in  a  mis-etable  condition  in- 
deed. The  prize  cannot  be  condemned,  nor  shared.  Every 
officer  and  seaman  may  be  liable  to  actions  without  number. 
The  taking  cannot  be  disputed.  To  disprove  the  proper- 
ty, they  can  only  have  witnesses  from  abroad,  who  cannot 
be  compelled  to  come  ;  and  in  every  action  where  the  plain- 
tiff recovers  to  the  smallest  value,  the  captor  must  pay  the 
costs.  Colourable  claimants  might  easily  ruin  the  captors 
through  their  want  of  the  means  of  defence.  It  would  be 
equally  mischievous  to  fair  claimants.  They  could  not 
have  their  property  restored  instantly,  upon  their  own  pa- 
pers, books,  and  affidavits.  They  naust  make  formal  proof, 
and  the  owners  or  crew  of  a  privateer  might  be  all  the 
while  spending  the  effects.  But  to  the  state,  the  conse- 
quences wouid  be  still  more  mischievous.  By  the  law  of 
nations  every  nation  is  answerable  to  the  other  for  all  in- 
juries done  by  sea  or  land,  or  in  fresh  waters,  or  in  port. 
Mutual  convenience,  eternal  principles  of  justice,  the  wisest 
regulations  of  policy,  and  the  consent  of  nations,  have  es- 
tablished a  system  of  procedure,  a  code  of  law,  and  courts 
for  the  trial  of  prize.  Every  country  sues  in  these  courts 
of  the  others,  which  are  all  governed  by  one  and  the  same 
law,  equally  known  to  each.  The  claimant  is  not  obliged 
to  sue  the  captors  for  damages,  and  undergo  all  the  delay 
and  vexation  to  which  he  will  be  liable,  if  he  sues  by  a  form 
of  litigation,  of  which  he  is  totally  ignorant,  and  subjects  his 
property  to  the  rules  and  authority  of  a  municipal  law  by 
which  he  is  not  bound.  In  short,  every  reason  which  cre- 
ated prize  courts  as  to  things  taken  jwre  be/Ii  upon  the  high 
seas,  holds  equally  when  they  are  thus  taken  at  Iand.(*) 

(s)  Douglas,  591    Lindo  v.  Ilodney  et  al.     It  has  been  held  that  the- 
jui'igdiction  of  the  prize  «oiirt  extend?  eve.  ^^ri^e  £;ood»  although  land- 


'iSO  LAW    OF  CHAP.    IX, 

But  in  tl'ic  commissions  which  were  issued  to  private 
armed  vessels  during  the  late  war  with  Great  Britain,  they 
were  authorised,  to  subdue,  seize,  and  take  any  armed  or 
unarmed  British  vessel  public  or  private,  which  shall  be 
found  within  the  jurisdictional  limits  of  the  United  States, 
or  elsev/here  on  the  high  seas,  or  within  the  waters  of  the 
British  dominions  ;— thus  excluding  them  from  making 
captures  on  land.  Independent  of  such  a  municipal  proT 
hibition,  there  is  nothing  to  limit  the  right  of  capture, 
or  the  jurisdiction  of  courts  of  prize,  to  property  found  on 
the  high  seas  pr  water  borne. 

18.  When  a  capture  is  made,  and  the  vessel  or  other 
thing  captured  is  brought  into  port,  it  is  the  duty  of  the 
captors  to  deliver  up  to  the  proper  officer  all  the  papers  and 
documents  found  on  board,  and  to  bring  in  for  examina- 
tion, touching  the  capture,  the  master,  and  one  or  more  of 
the  principal  persons  belonging  to  the  captured  vessel.  At 
the  time  when  the  papers  found  on  board  are  delivered  up, 
an  affidavit  is  to  be  made  that  they  are  delivered  as  taken, 
without  fraud;,  addition,  subduction,  or  embezzlement.  It 
ss  also  the  duty  of  the  captors  to  proceed  to  the  adjudica- 
■iioi\  of  the  property  before  tlie  lawful  court ;  and  if  they 
omit,  ov  unreasonably  delay,  thus  to  proceed,  any  person 
claiming  an  interest  in  the  captured  property  may  obtain  a 
snonition  against  them,  citing  them  to  proceed  to  adjudica- 
tion ;  which,  if  they  do  not  do,  or  shew  cause  why  the  pro- 
perty should  be  condemned,  it  will  be  restored  to  the  claim- 
ants proving  an  interest  therein.  And  this  process  is  often 
resorted  to  v/here  the  property  is  lost  or  destroyed,  through 
the  fault  or  negligence  of  the  captors,  in  order  to  obtain  a 
compensation  in  damages  for  the  unjust  seizure  and  det^i- 

cfl,  after  capture ;  hut  not  to  tlilpgs  kncled  before  capture.  1  Jiobiri- 
zon,  27h  The  Two  Friends.  This  is  however  to  be  understood  of  a 
J.'indiri;^  within  the  territorial  limits  of  tlie  court's  jurisdiction;  because 
'A  fias  cognizance  of  captures  made  on  land,  within  the  enemy's  territory, 
■;:■'  iXis.  tC£i-itory  ^f  c^t^e^"  pcrmiUing  the  exercise  U'f  hostilil-ie.^v 


t: 


MAiliTijIE    CAPTUllKo    AND    PRIZES.  281 

tion.  A  libel  is  to  be  exhibited  by  the  captors  against  the 
captured  property,  containing  proper  allegations,  the  ex:i- 
minalions  in  preparatorio  of  the  captured  persons  are  to  be 
taken  upon  the  standing  interrogatories,  and  a  monition  is  to 
be  issued  against  all  persons  in  general,  having,  or  pretend- 
ing to  have  an  interest,  &c.  citing  them  to  shew  cause  why 
the  property  should  not  be  condemned.  A  claim  must  be 
supported  upon  oath  at  least  as  to  belief;  and  briefly  states 
to  whom  the  ship  and  goods  claimed  belong,  and  that  the  en- 
emy has  no  right  or  interest  in  tliem.  The  testimony  upon 
which  restitution  or  condemnation  is  to  be  decreed,  must 
in  the  first  instance,  proceed  from  the  documentary  evi- 
dence and  the  examinations  in  preparatorio ;  and  if  no 
claim  is  put  in,  they  are,  of  course,  conclusive. (^) 

The  documentary  evidence  consists  of  the  papers  found 
on- board  the  captured  vessel,  or  invoked   into  the  cause 
from  some  other  cause.     The  general  rule  of  the  prize 
court  is,  that  where   there  is  a  repugnance  between  these 
two  species  of  evidence,  the  documents  and  the  deposi- 
tions, the  conviction  of  the  court  must  be  kept  in  equilibrio 
till  it  can  receive  further  proof;  but   it   is  a  rule  by  no 
means  inflexible  ;  it  is  liable  to  many  exceptions  ;  the  ex- 
ceptions may  sometimes  be  in  favour  of  depositions,  and 
sometimes,  though  more  rarely,  on  the  side  of  the  docu- 
mentary evidence.     A  case  may  exist,  in  which  the  wit- 
nesses may  appear  to  speak  with  such  a  manifest  disregard 
to  truth,  that  the  court  may  decide  in  favour  of  papers  bear- 
ing upon  them  all  the  characters  of  fairness  and  veracity. 
On  the  other  hand  it   may   happen,  and  does  more  fre- 
quently liappen,  that  the  papers  may  betray  such  a  taint  and 
leaven  of  suspicion  on  the  face  of  them,  as  will  give  a  de- 
cided preponderanc)'  to  the  testimony  of  the  witnesses  ex- 
amined, especially  if  these  witnesses  give  a  natural  account 
of  the  part  they  took  in  the  transaction,  and  in  a  manner  so 

^')  2  I>alh\B,  23.    IMiller  v.  the  Kcsolution- 


28.'i  tAW    Ol'  CHAP.    IX. 

distinct  and  clear,  as  to  carry  with  it  every  degree  of  mo- 
ral probability.  The  propriety  of  this  practice  will  be  best 
illustrated  by  an  example:  Let  us  suppose  the  case  of  a 
ship,  furnished  with  documents,  before  there  has  arisen 
any  apprehension  of  a  war;  there  could  then  be  no  reason 
for  the  introduction  of  fraudulent  papers  :  fraud  is  always 
inconvenient,  and  seldom  adopted  as  a  matter  of  choice  : 
under  such  circumstances  there  is  no  particular  ground  of 
suspicion  against  the  documents.  But  on  the  other  side, 
suppose  that  there  is  a  war,  or  the  apprehension  of  a  war, 
"when  the  documents  are  composed:  here,  in  that  decided, 
or  in  that  doubtful  state  of  things,  they  become  subject  to 
some  suspicions  in  limine  ;  which  suspicion  may  be  increa- 
sed by  their  having  passed  through  the  enemy's  hands. 
The  suspicions  will  be  still  further  increased,  if  the  proper- 
ty to  which  they  relate,  has  continued  imder  the  manage- 
ment and  direction  of  the  enemy.  And  if  in  addition  to 
all  tliis,  they  carry  such  contradictions  or  difficulties  on  the 
face  of  them,  as  cannot  be  explained,  admitting  the  matter 
to  be  a  fair  transaction ;  all  or  any  of  these  circumstances 
must  divest  the  papers  ef  their  natural  credit. (") 

It  is  a  general  rule  that  no  evidence  shall  be  admitted  in 
opposition  to  the  documentary  evidence,  and  preparatory 
examinations;  and  the  reason  of  the  rule  is,  that  fraud 
may  be  suppressed  and  discouraged.  But  the  principle  of 
this  rule  applies  to  cases  arising  in  time  of  war.  The  cir- 
cumstance of  exis,ting  hostilities  may  impose  a  peculiar- 
obligation  on  neutral  merchants,  to  keep  their  titles  of  pro- 
perty distinct,  and  free  from  any  intermixture  of  enemy's 
interest,  even  in  appearance ;  but  where  no  such  special 
reason  exists,  the  principle  does  not  apply  with  equal  pro- 
oricty,  to  govern  cases  of  an  assumed  character  in  time  of 
neacc  j  where  the  flag  and  pass  have  been  adopted  without 

i-)  I  liobir.son,  1.    The  Vigilfinlia. 


I 


MARITIME    CAPTURES    AND    TRITlES.  28IJ 

any  contemplation  of  war,  and  for  reasons  arising  out  of 
the  internal  regulations  of  a  foreign  country. (*) 

Where  a  claim  is  interposed,  and  the  court  is  not  satis- 
iied  with  the  original  evidence,  further  proof  is  ordered. 

This  privilege  of  further  proof  is  forfeited  by  the  claim- 
ant if  he  appears  to  be  guilty  of  fraud,  malafides^  or  unneu- 
tral conduct. ('*)  And  the  misconduct  of  one  partner  in 
these  respects,  will  affect  his  co-partners  in  a  general  part- 
nership, and  render  their  property  liable  to  share  the  same 
fate  with  his.  So  also,  if  the  general  agent  of  a  neutral  cai  go 
covers  enemy's  property  in  the  same  vessel,  though  with- 
out the  consent  or  knowledge  of  his  principal,  the  proper- 
ty of  his  principal  is  condemnable,  notwithstanding  it  may 
be  distinguished  by  the  papers. (^) 

Furthii*  proof  is  either  general^  and  consists  of  affidavits 
and  documents  introduced  on  the  part  of  the  claimants,  or 
hy  plea  and  proof. 

In  the  former  case,  affidavits  on  the  part  of  the  captors 
are  not  admitted,  except  under  the  special  direction  of  the 
court.  It  is  seldom  done  except  in  cases  where  there  has 
appeared  something  in  the  original  evidence,  which  lays  a 
suggestion  for  prosecuting  the  enquiry  further.  But  when 
the  matter  is  foreign,  and  not  connected  with  the  original 
evidence  of  the  cause,  it  must  be  under  very  particular  cir- 
cumstances indeed,  that  the  court  will  be  induced  to  accede 
to  such  an  application;  because,  if  remote  suggestions  were 
allowed,  the  practice  of  the  court  would  be  led  away  from 
ihe  simplicity  of  prize  proceedings,  and  there  would  be  no 

(^)  5  Robmson,  2.  The  Vrow  Elizabeth:  Ih.  15,  The  Yrow  Acna 
Catharina.     6  Robinson,  1.  La  Flora, 

{•")  I  Rnllnson,  127.  The  JufFrouw  Anna.  .B.  165.  The  Yrouw.  124. 
The  Welvnart.  2  Robinson,  1.  The  Cenroom.  D  Robinson,  111.  The 
tjraaf  BernstorO'.  4  R-Jnnson,  32.  The  .Icmmy.  G  Robinsor),  70.  The 
ATars.    3  Robinson,  343-  The  liosalie  &  Betty. 

('-•)  2  Sivvf',  308.  TheThanix  Ing.  Co.  r.  Pratt  S;  n.^rlcpon. 


J 


2<54  LAW   OF  CHAP.  IX. 

end  to  the  accumulation  of  proof  that  would  be  introduced, 
in  order  to  support  arbitrary  suggestions, (J)  But  the  cap- 
tors are  permitted,  on  a  general  order  for  further  proof,  to 
invoke  papers  from  another  vessel,  not  brought  in  for  adju- 
dication.(^)  They  are  also  permitted  to  invoke  from  other 
causes  depositions  of  the  same  claimants. ('•^) 

In  the  latter  case,  v/here  the  court  order  plea  and  proof, 
instead  of  admitting  affidavits  and  documents  introduced 
by  the  claimants  onl)^,  each  party  is  at  liberty  to  allege  in 
regular  pleadings  such  circumstances  as  may  tend  to  acquit 
or  condemn  the  captured  property,  and  to  examine  wit- 
nesses in  support  of  the  allegations,  to  whom  the  adverse 
party  may  administer  interrogatories*  This  species  of 
proof  is  of  the  most  solemn  nature  ;  it  admonishes  the 
parties  of  the  dilliculties  of  their  situation,  and  calls  for  all 
the  proof  that  their  case  can  supply.  Condemnation 
.must  necessarily  ensue  if  this  evidence  is  defective.  No 
second  reference  can  be  made  for  further  proof,  after  the 
cause  has  undergone  a  trial  of  this  nature ;  it  is  conclusive, 
and  shuts  the  door  against  all  supplementary  evidence. (^) 

If  the  property  be  liable  to  perish  or  subject  to  deteri- 
oration, it  may  be  sold  by  order  of  the  court,  and  the  pro- 
ceeds of  the  sale  brought  into  court  there  to  abide  the 
final  decision  in  the  cause.  (^) 

Upon  appeal,  the  execution  of  the  sentence  is  not  to  be 
suspended,  if  the  party,  in  favour  of  whom  the  same  i$ 
rendered,  enter  into  a  stipulation  to  restore  the  ship  or 
goods  or  the  fiill  value  thereof,  in  case  the  sentence  be  re- 

{>■)  1  nolnmon,  313.  The  Adriana.    3  ItobinF.on,  330.  The  Sarah. 

(0  G  Jioliinson,  351,  The  Komeo. 

(0  4  Rolimon,  16G.  The  Vrlcndschap. 

(••)  1  Jiobimon,  31.  The  Magnus. 

(' )  I'dlin,  Sur  rOfdonnance,  L.  3.  tit.  9..;:Des  Prises,  art.  28.    3  /?*- 
i^hison,  178.  Tlic  Copcnhajjen.    2  JUallai,  40.''Stoddard  v.  Bead  and  tli, 
8qnirrcl. 


MARITIME    CArTURES    AND    pniZES.  28'; 

V 

versed.  If  no  such  stipulation  is  entered  into,  the  pro- 
perty is  to  be  sold,  and  the  proceeds  brought  ipto  court  to 
abide  the  final  decision  in  the  cause. (•^) 

Ne\v  and  further  evidence  may  be  introduced  in  the 
appellate  court,  if  upon  the  hearing  tha-^  court  should  be  of 
opinion  that  the  cause  is  of  such  doubt  as  that  further  proof 
ought  to  have  been  ordered  by  the  court  below.  But  it  is 
not  a  matter  of  course  in  this  court  to  make  an  order  for 
further  proof.  When  the  parties  are  fully  apprized  of  the 
nature  of  the  proof  which  their  case  requires,  and  have  it 
in  their  power  to  produce  it,  an  appellate  court  should  not 
readily  listen  to  such  an  application  :  but  when  ib  appears 
that  the  parties  who  ask  this  indulgence  have  withheld  from 
thr  court  letters  and  other  documentary  testimony,  which 
must  be  supposed  in  the  particular  case,  to  have  been  in 
their  possession,  they  come  'with  a  very  ill  grace  to  ask 
for  any  further  time  to  make  out  their  title.  Where  the 
affidavits  upon  which  further  proof  is  asked  for,  are  silent 
with  respect  to  the  papers  which  must  have  been  in  the 
claimants'  possession,  and  which  are  deemed  to  have 
been  in  their  possession,  funher  pi'oof  cannot  be  allow- 
ed. («) 

Costs  and  damages  may  in  the  discretion  of  the  court,  be 
given  to  the  claimants  in  cases  of  the  unjustifiable  seizure 
and  detention  of  their  property  ;  (*')  and  ihey  are  con- 
demned in  costs  and  damages  where  th^ey  interpose,  claimf? 
manifestly  groundless.  So  also  where  tlfe  seizutje  is  justi- 
fiable on  account  of  the  misconduct  or  fault  of  the  claim- 
ants, the  captors  are  allov/ed  their  expenses,  which  are  to 
be  paid  by  the  claimants,  though  restitution  of  the  proper- 
ty be  decreed. 

(<i)  2  Bfovin^a   Civ.  andAdm.  Luti',  4j4. 

(e)  Per  LiYi>GSToir  J.  The  St.  Lawrence-  SHpreme  Geurt  of  ttoe 
tr.  S.  February  T.  1815  M.  S. 


(')  1   Codedes  Prisen,  14.3.  308. 
37 


28(5  LAV/   OF  CHAP.  IX. 

19.  After  a  final  sentence  of  condemnation,  the  duties j 
costs,  charges,  and  expenditures,  on  the  captui-ed  property 
are  to  be  first  deducted,  and  (in  case  the  capture  be  made 
by  a  private  armed  vessel)  two  per  centum  on  the  net 
amount  is  then  to  b#  paid  over  to  the  collector  or  chief  offi- 
cer of  the  customs  at  the  port  of  the  UAited  States  into 
which  the  captured  vessel  is  brought  for  adjudication,  or 
to  the  consul  or  other  public  agent  of  the  United  States  if 
the  vessel  is  brought  into  a  foreign  port,  in  order  to  form. 
a  fund  for  the  support  of  the  widows  and  orphans  of  such 
persons  as  may  be  slain,  and  for  the  support  of  such  persons 
as  may  be  wounded,  onboard  of  private  armed  vessels  in  any 
engagement  with  the  enemy.  The  remainder  of  the  pro- 
ceeds is  to  be  distributed  among  the  captors  according  to 
any  written  agreement  which_  shall  be  made  between  them  j 
and  if  there  be  no  such  agreement,  then  one  moieiy  to  the 
owners,  and  the>other  moiety  to  the  officers  and  crews 
of  private  armed  vessels,  to  be  distributed  among  the 
officei-s  and  crew,  as  nearly  as  may  be,  according'  to  the 
rules  prescribed  for  the  distribution  of  prize  money  by  the 
act  of  April,  1800,  for  the  better  government  of  the  navy 
of  the  United  States. 

The  above  is  the  provision  contained  in  the  prize  act 
which  subsisted  during  the  late  war  with  Great  Britain. 
But  by  the  act  for  the  protection  of  the  commerce  of  the 
United  States  against  the  Algerine  cruisers,  of  March, 
1815,  Sec* 4,  it  is  enacted.  That  any  Algerine  vessel,  goods 
or  effects,  which  may  be  so  captured  and  brought  into  port 
by  any  private  armed  vessel  of  the  United  States,  duly 
commissioned  as  aforesaid,  may  be  adjudged  good  prize, 
and  thereupon  shall  accrue  to  the  owners,  and  officers, 
and  men  of  the  capturing  vessel,  and  shall  be  distributed 
according  to  the  agreement  which  shall  have  been  made 
between  them,  or,  in  failure  of  such  agreement,  according 
to  the  discretion  ol'thy  ccAUt  having  cognizance  of  the  can- 
«.urc. 


MARITIME    CAPTURES    AND    PRIZES.  287 

A  libel  by  the  crew  of  a  private  armed  vessel,  for  their 
respective  proportions  of  a  prize,  is  the  proper  and  regular 
mode  to  compel  a  distribution  :  but  where  the  proceeds  of 
a  prize  are  in  the  marshall's  hands,  the  parties  entitled  may 
either  institute  a  supplemental  libel  in  the  prize  court  or  an 
action  at  common  law  for  money  had  and  received  : 
And  if  a  marshall  makes  distribution  without  the  orders  of 
the  prize  court,  he  does  it  at  his  peril,  and  the  court  before 
issuing  the  order  will  guard  against  fraud  and  imposition, 
•by  providing  for  latent  claims. (^) 

20.  Before  we  proceed  to  state  the  rules  for  the  distribu- 
tion of  prize  money  it  is  material  to  enquire,  who  are  cap- 
tors ?  And  this  brings  us  to  consider  the  questions  arising 
from  allegations  of  joint  capture. 

These  may  be  alleged  to  have  been  made  by  public  ves- 
sels of  war,  or  private  armed  vessels  ;  or  by  the  assistance 
and  co-operation  of  land  forces. 

In  the  first  case,  that  of  public  ships  of  war,  they  are 
entitled  to  share  in  a  prize  from  the  mere  circumstance  of 
having  been  in  sight  at  the  time  of  capture  and  lending  a 
constructive   assistance. 

They  are  under  a  constant  obligation  to  attack  the  enemy 
wherever  seen;  a  neglect  of  duty  is  not  to  be  presumed,  and 
therefore  from  the  mere  circumstance  of  being  in  sight,  a 
presumption  is  sufficiently  raised,  that  they  are  there  anhno 
capiendz.(^^  Thus  the  French  ordinance  of  June,  1757, 
art.  10,  provides  with  regard  to  public.irt'essels  of  war  that 
those  shall  be  considered  as  joint  captSrs  who  shall  be  found 
together  and  in  sight  of  the  prize  at  the  tin-ke  of  its  being 
captured.  And  by  the  act  for  the  better  government  of  the 
Navy  of  the  United  States,  Sec.  6.  art.  No  VII.  it  is  enac- 
ted that,  whereyer  one  or  more  public  ships  or  vessels  are 

(g)  2  Dallas,  37.  Keane  et  al.  v.  The  Gloucester-  lb,  174.  Hender- 
son V.  Clarkson. 

CO  JJynhershoek,  Q.  J.  P.  L-  1.  c.  18.  1  BQVmsQu,  21,  The  Yryhei^. 
5  RaUmon,  268;  La  Flore< 


2SS  LAW    OV  CHAP.  IX. 

in  sight  ?,t  the  time  any  one  or  more  ships  are  taking  a  prize 
or  prizes,  they  shall  share  according  to  number  of  men  on 
board  each  ship  in  sight.  But  in  the  case  of  private  armed  ves- 
sels the  rule  of  law  is  different ;  and  with  respect  to  them,  it 
must  be  shewn,  that  tiiey  were  constructively  assisting.  The 
being  in  sight  is  not  sufficient  to  raise  a  presumption  of  co- 
operation in  the  capture.  They  clothe  themselves  with  com- 
missions of  war  from  views  of  private  advantage  only.  They 
are  not  bound  to  put  their  commissions  in  use  on  every  dis- 
covery of  an  enemy.  Therefore  the  law  does  not  presume^' 
in  their  favour,  from  the  mere  circumstance  of  being  in 
sight,  that  they  were  there  with  the  design  of  contributing 
assistance,  and  engaging  in  the  contest.  There  must  be  the 
anhnics  capiendi  demonstrated  by  some  overt  act  i  by  some 
variacionof  conduct  which  would  not  have  taken  place,  but 
with  reference  to  that  particular  object,  and  if  the  intention 
of  acting  against  the  enemy  had  not  been  effectually  en- 
tertained. Thus  the  French  ordinanceof  January,  1706,  art, 
1  and  2,  provides  with  regard  to  privateers  that  none  shall 
be  entitled  to  share  in  a  prize  taken  from  the  enemy,  un- 
less they  have  contributed  to  the  capture  by  fighting,  or  by 
making  such  an  effort  as  may  have  compelled  the  enemy  td 
surrender,  by  intimidating  him  or  cutting  off  his  retreat. (') 
As  to  Ian  i  forces,  they  are  not  considered  as  entitled  to 
share  in  a  capture,  unless  they  have  actually  co-operated 
and  assisted  in  making  it.  The  mere  presence  and  being  in 
bight  of  different  pllrties  of  a  naval  force  is,  with  the  ex- 
ception of  privateers,  sufRcient  to  entitle  them  to  be  consid- 
ered as  joint  captors  ',  bccaute  they  are  always  considered 
to  have  that  privity  of  purpose  which  may  constitute  a 
community  of  interests  ;  but  between  land  and  sea  forces 
acting  independently  of  each  other,  and  for  different  pur- 
poses, there  can  be  no  such  privity  presumed  ;  and  there- 

(i)  Brjnkenhoch,  Q.  J.  P.  L.  1.  c.  18.    Martens  on  Cr.pt m-es,  §  32.    6  ^«« 
bJjison,26i.    L'Aoiitic.    I  i;u^.''a5j9j.    Talbol  £vC.  v.TiirceXJrigs. 


^¥ 


•  ''MARITIME    CAPTURES    AND    rRIZH!:".  ^S*) 

fore  to  establish  a  claim  of  joint  capture  between  them, 
there  must  be  a  contribution  of  actual  assistance,  and  the 
mere  presence,  or  being  in  sight,  will  not  be  sufficient. 
And  when  there  is  no  pre-concert,  it  must  'be  not  a  slight 
service,  nor  an  assistance  rendering  the  capture  more  easy 
or  convenient,  but  some  very  material  sei-vice,  that  will  be 
deemed  necessary  to  entitle  an  army  to  the  benefit  of  joint 
capture  ;  where  there  is  a  pre-concert,  it  is  not  of  so  much 
consequence  that  the  service  should  be  material,  because 
then  each  party  performs  the  service  that  is  previously  as- 
signed to  him,  and  whether  that  is  important  or  not,  it  is 
not  so  material ;  the  part  is  performed,  and  that  is  all  that 
was  expected  :  But  where  there  is  no  such  privit)^  of  design, 
and  where  one  of  the  parties  is  offeree  equal  to  the  work» 
and  does  not  ask  assistance,  it  is  not  the  interposing  of  u 
slight  aid,  that  will  entitle  another  party  to  share-C') 

In  all  cases,  the  onus  probandi  lies  on  those  setting  up 
a  capture  by  construction,  because  they  are  not  persons 
strictly  within  the  prize  act,  but  let  in  only  by  the  inter- 
pretation of  those  acting  with  a  competent  authority  to  in- 
terpret it.  It  lies  with  the  claimants  in  joint  capture, 
therefore,  either  to  allege  some  cases  in  which  ilicir  con- 
struction has  been  admitted  in  former  instances,  or  to  shew 
some  principle  in  their  favour,  so  clearly  recognized  and 
established,  as  to  have  become  almost  a  first  principle  in 
cases  of  this  nature.  The  being  in  sight  is  sufficient  to 
entitle  parties  to  be  admitted  joint  captors,  and  where  thai 
fact  is  alleged,  we  do  not  call  for  particular  cases  to  au- 
thorize the  claim  ;  but  where  that  circumstance  is  want- 
ing, it  is  incumbent  on  the  party  to  make  out  his  claim  by  an 
appeal  to  decided  cases,  or  at  leaiBt  to  principles,  which 
are  fairly  to  be  extracted  from  those  cases.  And  it  has 
been  contended  that  where  ships  are  associated  in  a  coin- 
raon  Qnterprhe^  that  circumstance   is  sufficient  to  eutitL 

(■'')  2  liobinsori,  53.    Th$  Dorcbeclit. 


20O  LAW     Oi"  CIlAl'.  IX. 

them  to  share  equally  and  alike  in  the  prizes  that  are  made  : 
but  certainly  this  cannot  be  maintained  to  the  full  extent 
of  these  terms  ;  many  cases  might  be  stated  in  which  ships 
so  associated  would  not  share.  Suppose  a  case,  that  ships 
going  out  on  the  same  enterprise,  and  using  all  their  en- 
deavours to  f  ffectuatc  iheir  purpose,  should  be  separated  by 
storms  or  otherwise,  no  one  would  contend  that  they  should 
share  in  each  other's  captures  ;  there  is  no  case  in  which 
such  persons  have  been  allowed  to  share  after  separation, 
being  not  in  sight  at  the  time  of  chasing  :  it  cannot  be  laid 
down  to  that  extent,  and  indeed  it  would  be  extremely  in- 
commodious that  it  should  ;  nothing  is  more  difficult  than 
to  say  precisely  where  a  common  enterprise  begins.  In  a 
more  enlarged  sense,  the  whole  navy  may  be  said  to  be 
contributing  in  the  joint  enterprise  of  annoying  the  enemy. 
In  particular  expeditions  every  service  has  its  divisions 
and  subdivisions  ;  operations  are  to  be  begun  and  conduct- 
ed at  different  places ;  in  the  attack  of  an  island  there  may 
be  different  ports,  and  different  fortresses,  and  different 
ships  of  the  enemy  lying  before  them  ',  it  may  be  necessa- 
ry to  make  the  attack  on  the  opposite  side  of  the  island  ; 
or  to  associate  other  neighbouring  islands  as  objects  of  the 
same  attack  :  The  difficulty  is  to  say  where  the  joint  en- 
terprise actually  begins.  Again,  Is  it  every  remote  con- 
tribution, given  xvUh  intention,  or  tvithont  hitentwn^  that 
can  be  sufficient  ?  That  is  not  to  be  maintained  ;  an  actual 
service'' may  be  done  without  intention  ;  or  there  may  be  a 
general  intention  to  assist,  and  yet  no  actual  assistance  gi- 
'/en.  Can  any  body  say  that  a  mere  intention  to  assist, 
>\  ithout  actual  assistance,  though  acted  upon  with  the  most 
prompt  activity,  would  in  all  cases  be  sufficient  ?  If  per- 
sons under  such  claims  could  share,  there  would  be  no  end 
io  dispute  ;  no  captor  wculd  know  what  he  Avas  about, 
whether  in  every  prize  he  made,  there  might  not  be  some 
one  fifty  leagues  distant,  working  very  hard  to  come  up  : 
In  serving  his  country  every  captor  would  be  left  in  un- 


.'MARITIME    CAPTURES    AND    PIMZES.  29J. 

certainty,  whether  some  person  whom  he  never  saw,  and 
whom  the  enemy  never  saw,  might  not  be  entitled  to  share 
with  him  in  the  rewards  of  his  labour.  The  great. intent 
of  prize  is  to  stimulate  the  present  contest,  and  to  qj^cou- 
rage  men  to  encounter  present  fatigue  and  present  danger, 
an  effect  which  would  be  infinitely  weakened,  if  it  were 
known  that  there  might  be  those  not  present,  and  not  con- 
cerned in  the  danger,  who  could  entitle  themselves  to  share. 
On  these  considerations  it  must  ever  be  held,  that  the  prin- 
ciple of  mere  conmon  enterprise  alone  will  not  be  suffi- 
•  cient;  it  is  not  salficiently  specific,  it  must  be  more  limit- 
ed, nor  can  it  be  maintained  that  ships  detached  from  the 
squadron  on  views  immediately  connected  with  the  main 
^  enterprise  are  enti'led  to  share.  Many  cases  might  be  put, 
in  whicii  that  position  could  not  be  maintained.  Suppose 
a  fleet  going  to  besiege  a  place,  and  one  ship  detached  to 
procure  provisions  and  stores,  which  does  not  come  up  and 
join  the  fleet  until  the  place  is  taken ;  it  would  be  very 
wrong  to  maintain,  that  such  a  vessel,  neither  present  at 
the  commencement,  nor  at  the  conclusion  of  the  enterprise, 
could  be  entitled  lo  share ;  it  has  been  decided  in  practice, 
that  she  would  not;  and  the  distinction  taken  was  this,  that 
if  the  ship  was  sent  off  for  common  necessaries,  after  the 
operations  had  begun,  or  if  she  returned  before  the  object 
was  accomplished,  she  should  be  permitted  to  share,  and 
not  otherwise,  though  her  absence  was  occasioned  sole- 
ly for  the  purpose  of  procuring  necessaries  for  the  service. 
Then  the  limitation  ingrafted  on  the  first  principle,  namely, 
that  the  detachment  is  made  for  an  object  immediately 
connected  with  the  service  is  not  sufficient,  something  more 
must  be  added,  and  that  must  be  the  being  in  sight. 

21.  By  the  act  of  the  23d  April,  1800,  for  the  better  go- 
vernniv-nt  of  the  navy. of  the  United  States,  it  is  enacted, 

Sec.  5.  That  the  proceeds  of  all  ships  and  vessels,  and 
the  goods  taken  on  board  of  them,  which  shall  be  adjudged 
good  prize,  shall,  when  of  equal  or  superior  force  t©  the 


i9S  LAW  oir  tuAP*  IX. 

vessel  or  vessels  making  the  capture,  be  the  sole  property 
of  the  captors  :  and  when  of  inferior  force,  shall  be  divided 
cquallj^  between  the  United  States  and  the  officers  and 
men  making  the  capture. 

Sec.  6.  That  the  prize  money,  belonging  to  the  officers 
andmen  shall  be  distributed  in  the  following  manner: 

I.  To  the  commanding  officers  of  fleets,  squadrons,  or 
single  ships,  three  twentieths,  of  v/hich  the  commanding 
officer  of  the  fleet  or  squadron  shall  have  one  twentieth, 
if  the  prize  be  taken  by  a  ship  or  vessel  acting  under  his 
command,  and  the  commander  of  single  ships,  two  twen- 
tieths ;  but  where  the  prize  is  taken  by  a  ship  acting  inde- 
pendently of  such  superior  officer,  the  three  twentieths  shall 
belong  to  her  commander. 

II.  To  sea  lieutenants,  captains  of  marines,  and  sailing 
JTiasters,  two  twentieths ;  but  where  there  is  a  captain, 
without  a  lieutenant  of  marines,  these  officers  shall  be  en- 
titled to  two  twentieths  and  one  third  of  a  twentieth,  which 
third  in  such  case,  shall  be  deducted  from  the  share  of  the 
officers  mentioned  in  article  No.  III.  of  this  section. 

III.  To  chapl'.iins,  lieutenants  of  marines,  surgeons,  pur- 
sers, boatswains,  gunners,  carpenters,  and  niasters  mates 
two  twentieths. 

IV.  To  midshipmen,  surgeons  mates,  captains  clerks, 
jichoolmasters,  boatswains  mates,  gunners  mates,  carpen- 
ters mafes,  ship's  stewards,  sail  mal:ers,  masters  at  arms, 
armourers,  cockswains,  and  coopers,  three  twentietho  and  a 
half. 

V.  To  gunners  5-eomen,  boatswains  yeomen,  quarter 
masters,  quarter  gunners,  sail-makers  mates,  serjeants  and 
corporals  of  marines,  drummers,  fifers,  and  extra  petty  offi- 
cers, two  twentieths  and  a  half. 

VI.  To  seamen,  ordinary  rrrjucn,  marines,  and; all 
<uhcr  persons  duingduty  on  board,  seven  twentieths.      * , 

VII.  No  commander  of  a  fleet  or  squadron  shall  be  en- 
i;Lied  to  receive   any  share  of  prices  taken  by  vessels  not 


i 


MARITIME    CAPTURES    AND    PRIZES'.  293 

under  his  immediate  command  j  nor  of  such  prizes  as  may 
have  been  taken  by  ships  or  vessels  intended  to  be  placed 
under  his  command,  before  they  have  acted  under  his  im- 
mediate orders  j  nor  shall  a  commander  of  a  fleet  or  squad- 
ron, leaving  the  station  where  he  had  the  command,  have 
any  share  in  the  prizes  taken  by  ships  left  on  such  station, 
after  he  has  gone  out  of  the  limits  of  his  said  command. 

22.  By  the  laws  of  the  United  States,  no  regulation  has 
been  adopted  as  to  the  distribution  of  prize  money  between 
d'liftrent  private  armed  vessels,  joint  captors;  and  of  course 
this  distribution  must  be  governed  by  the  general  rules  of 
the  prize  jurisdiction.  Upon  general  principle  it  would 
seem  reasonable  in  cases  of  joint  capture  that  the  distribu- 
tion should  be  according  to  the  relative  strength  of  the  cap- 
turing ships.  In  that  pi'oportion,  the  intimidation  of  the 
enemy  leading  to  a  surrender  would  ordinarily  be  supposed 
to  exist  where  no  battle  should  be  actually  fought ;  and  in 
cases  of  actual  battle  the  degree  of  injury  done  to'the  enemy 
would  be  estimated  in  the  same  manner.  And  in  a  mid- 
dle class  of  cases,  where  one  ship  was  actually  engaged  and 
the  other  only  in  general  co-operation,  the  ultimate  surren- 
der might  well  be  attributed  as  much  to  the  despair  of  es- 
cape from  the  combined  force,  as  the  immediate  injury 
from  the  engaging  force.  And  indeed  to  attempt  a  dis- 
crimination founded  upon  different  degrees  of  exertion 
would  be  very  difficult  if  not  wholly  impossible  in  practice. 
Bynkershoek  therefore,  (and  he  alone  is  great  authority) 
lays  down  the  rule  that  the  parties  shall  in  joint  captures 
share  in  proportion  to  their  respective  strength. (')  And 
this  is  apprehended  to  be  the  rule  established  in  the  prize 
courts  of  England  and  France ;  and  perhaps  forms  the  basis 
o>f  the  rule  of  distribution  among  the  other  maritime  pow- 
ers of  Europe  ('")     In  the  manner  of  estimating  this  rela» 

(')  Q.  J.  P.  c.  18. 

(™)  2  TamtQii's  Jiep.  7.    Buckworth  v.  Tucker. 

38 


'204:  LAW  Of  CHAP.  IX. 

tive  strengtli  a  great  diversity  of  regulations  exists.  Valiii 
statesthat  in  France  the  mode  varies  in  three  classes  of  cases 
of  joint  capture;  1st.  Between  a  public  ship  and  a  privateer 
the  distribution  is  in  proportion  to  the  number  of  guns  ; 
2d.  Between  privateers,  in  proportion  to  the  .  force  and 
equipments  and  the  calibre  of  the  guns  of  the  respective 
ships,  and  the  estimate  in  this  case  depending  upon  such  he- 
terogenous and  complex  combinations,  is  reduced  to  a  unity 
of  denomination  by  an  arbitrary  valuation  of  the  component 
parts;  3d.  Between  public  ships  in  proportion  to  the  number 
and  calibre  of  their  respective  batteries  of  cannon.  In  En- 
gland, no  statute  regulation  exists  as  to  privateers ;  and 
therefore  their  claims  are  settled  by  the  general  law  of 
relative  strength.  This  relative  strength  is  to  be  measured, 
as  has  been  settled  by  solemn  adjudications  in  the  common 
law  and  prize  courts,  by  the  number  of  men  on  board  each 
ship.(")  This  rule  has  the^advantage  of  great  practical 
simplicity  and  general  equity.  It  seems  bottomed  on  the 
soundest  sense,  and  places  the  relative  force  in  the  power 
and  activity  of  animated  beings,  in  which  it  must  always 
ultin^.ately  reside,  rather  than  in  the  mere  Instruments, 
which  without  such  power  and  activity  would  be  useless 
and  unavailing.(°) 

23.  At  least  as  early  as  the  3-car  ITOS,  by  the  British 
statutes,  one  eighth  of  all  prizes  made  by  ships  under  the 
command  of  a  flag  was  given,  To  the  flag  ofliccr  or  officers 
being  actually  on  hoard  or  directing'  or  assisting' m  the  cap- 
ture, (i')  Upon  the  construction  of  this  clause  it  was  held 
that  actual  direction  or  assistance  was  not  necessary,  and 
that  the  mere  circumstance  of  holding  a  flag  commission 
and  the  authority  in  virtue  thereof  to  direct  and  assist  in 
the  operations  of  a  fleetj,  was  such  a  constructive  direction 

(")  Doiifflas,  311.    Kobcrls  V.  Hartley. 

(")  Per  Stojii  J.    The  Castigalor  and  Fame.    Circuit  Court  of  the  U. 
S.  for  the  Massacliusetls  Diblrict,  October  T.  1813.    3M,  S. 
f')  Jlibimon'g  Colliiclmcu  Mwiumci, 200  Note. 


'^. 


MARITIME   CAPTURES   AND    PRIZES.  295 

or  assistance  as  entitled  the  commander  to  share,  although 
he  had  never  joined  the  fleet,  or  given  any  order,  or  done 
any  other  ofllclal  act  in  quality  of  commander.  In  point  o£ 
fact  therefore  the  commander  claimed  his  share  of  all  pri- 
zes, made  from  the  date  of  his  commission  to  the  termina- 
tion thereof.  This  extensive  right  was  deemed  injurious 
to  the  service,  and  at'^length  in  1 744,  was  taken  from  the 
flag  officer  in  a  variety  of  cases  :    1st.  Where  prizes  were 

tmade  by  ships  on  a  station  before  he  arrived  within  the 
limits  of  his   command;    2dly.    Where  prizes  were  made 
by   reinforcing  ships  before  their  arrival  within  the  limits 
of  his  command  :    and  3dly.    Where  prizes  were  made  by 
ships  on  a  station,  the  flag  officer  of  which  was  returning 
home,  after  he  had  got  out  of  the  limits  of  his  command. 
In  all  other  cases  the  right  stood  upon   the    general  clause 
and  extended  to  ail  prizes  made  by  ships  uncjer  his  com- 
mand.    In  1756,  these  restrictions  were  somewhat  varied, 
and  the  form  then  adopted  continued  in  use  until  the  year 
js-      1803.     In  the  regulations  of  17a6  the  flag  officer  is  denied 
AM^:  a  right  to  share:  1st,  In  prizes  made  by  ships   on  a  sta- 
^1//  tion,  where  he  is  sent  to  command,  before  he  arrives    at 
■*'        the  place  to  which  he  is  sent,  and  actually  takes  upon  him 
the    command  ;  2dly,  In  prizes    made  by  a   reinforcing 
squadron,  before   it  shall  arrive   within  the  limits  of  the 
command  of  the   superior  flag  officer  and  actually  receive 
fc  some  order  from  him;  and  3dly,  In  prizes  made  by  ships 

»*.        left  behind  to  act  under  another  command,  when  a  flag  offi- 
cer is  returning  home  from  a  station. (i) 

64.  Upon  the  construction  of  these  regulations  it  has, 
been  held,  that  a  flag  officer  is  not  entitled,  who  has  resign- 
ed and  accepted  under  another  distinct  command,  or  huB 
been  superseded  at  the  time  of  the  capture  ;  nor  where  the 
rapturing  ship  has  been  detached  by  the  admiralty  upon  a 

(<))  1  R  Bl.  261.  Johnstone  v.  Jlargotson.  3  Bos.  and  FaL  257,  NeJ- 
son  V.  Tuckei'.    4  East,  238, 


t 


296  LAW    OF  '"        C'itfA^I||X» 

secret  service  ;  nor  where  the  capturing  ship  has  made  the 
capture  without  the  limits  of  the  station  without  orders  ; 
nor  where  the  fiag  officer  has  returned  home  for  tempora- 
ry purposes,  leaving  his  squadron  behind  on  the  station  ; 
nor  where  there  has  been  a  temporary  suspension  of  the 
command,  as  by  the  ships  going  into  another  station  for  re- 
pairs, and  acting  while  there  undei^  another  command.('^) 
But  in  ail  cases,  not  within  the  exceptions  of  ihe  articles  of 
1 75&^  the  general  rule  prevails,  that  the  flag  officer  actually 
in  command,  shall  receive  the  flag  eighth  :  And  therefore, 
if  he  be  actually  in  command,  he  is  entitled,  although  he 
has  not  given  any  orders,  and  the  capture  was  made  under 
orders  from  a  former  flag  officer.  And  it  matters  not  whe- 
ther the  actual  command  be  bj-^  direct  appointment  or  by 
devolution  in  the  course  of  the  service. (') 

Such  are  the  most  important  distinctions  which  have 
been  recognized  under  the  prize  acts  and  proclamations  of 
Great  Britain.  And  it  is  impossible  for  the  attention  not 
to  be  forcibly  struck  with  the  exact  resemblance  which  the 
provisions  of  the  act  of  March  2d,  1799,  sec.  6.  bear  to 
them.  The  distinctions  which  have  been  made  under  them, 
reflect  light  on  this  subject,  and  were  obviously  in  the 
view  of  Congress  in  framing  our  own  statutes. 

25,  As  such  they  were  applied  to  the  decision  of  the 
following  case.  During  the  late  war,  the  frigate  Che- 
sapeake, commanded  by  Captain  Evans,  the  brig  Argus, 
iind  the  frigate  United  States,  commanded  by  Commodore 
Decatur,  were  attached  together  as  a  squadron,  imder  the 
command  of  the  latter,  by  orders  from  the  navy  dtpart- 
xnent  of  the  9th  September,  1812.  On  the  6th  October, 
Commodore  Decatur  gave  the  captain  of  the  Chesapeake 

(0  1  ][.  Bl.^Gr^.  In  Notis.  .  1  //.  Bl.  261,  Johnstone  v.  M;irgetson: 
3  lios  &  Put.  257.  Nelson  v.  Tucker.  4  East,  23S.  Vide  tJie  Ann.  3 
Jtobimoii,  CO.  C  Eait,  llarvcy  v.  Coyktt.  4  i?cW«so«,  S62.  The  Orion 
3  Ease,  502.  ^Holmes  v.  Riilner. 

()  4  jSaci,  202,  KeitU  v-  I'ringk. 


3MARITIME    CAPTURES    AND    PRIZES.  297 

sailing  orders  for  a  cruize,  and  soon  afterwards  sailed  from 
Boston,  and  captured  the  British  frigate  I*'Iacedonian,  in  a 
memorable  engagement,  returned  vMh  his  prize  to  the 
United  States,  previous  to  the  sailing  of  the  Chesapeake, 
and  was  blockaded  by  a  superior  force  of  the  enemy.  On 
the  23th  November,  the  Sccnptar}  cf  the  Navy  addressed 
a  letter  to  the  Captaip  of  the  Chesapeake,  directing  him  to 
weigh  anchor  and  proceed  as  he  had  ocen  directed  by  Corn- 
viodore  Dicatur  to  whose  squadron  he  v  as  attadicd..  The 
Chesapeake  sailed  in  December,  captured  the  prize  ia 
question,  and  returned  from  her  cruize  in  April,  when 
Captain  Evans  immediately  reported  his  cruize  to  Com- 
modore Decatur  as  his  commanding  officer. 

It  was  contended  on  behalf  of  the  defendant,  1st,  That 
the  Chesapeake  at  the  time  of  the  capture  was  acting  inde- 
pendently of  a  superior  officer  within  art.  No.  I.  of  sec.  6. 
of  the  act  of  the  23d  April,  1800;  or  2d,  That  Commo- 
dore Decatur  had  left  th'e  station,  where  he  had  the  com- 
mand at  the  time  of  the  capture,  within  art.  No.  VII.  of 
the  same  section. 

As  to  the  first  point,  the  court  thought  it  extremely 
clear  that  in  no  sense  could  the  Chesapeake  be  considered, 
at  the  time  of  the  capture,  as  acting  independently  of  a  su- 
perior officer.  Actual  presence  of  the  superior  officer  at 
the  time  of  the  capture,  is  neither  supposed  nor  required 
by  the  law.  It  is  sufficient  if  the  ship  be  not  detached  on 
a  separate  service  by  the  government,  but  remain  under 
the  command,  and  subject  to  the  orders  of  the  superior  of- 
ficer. In  such  a.  case  the  superior  officer  is  deemed  to  af- 
ford constructive  assistance,  and  is  responsible  for  his 
squadron,  however  far  he  may  be  removed  from  the  scene 
of  action. 

The  second  question  was  wliether  Commodore  Decatur 
had  left  the  station  where  he  had  the  command  at  the 
time  of  capture.  In  order  to  lay  a  fdundation  for  the  ar- 
gument on  this  hsad.  it  was  necessary  to  shew  that  he  hael 


398  LAW  OF  •  "^F  efMW*tX, 

a  station  assigned  to  him ;  for  otherwise  it  is  impossible 
to  conceive  how  he  could  have  left  it.  Now  in  the  sta- 
tute, a  station  necessarily  includes  the  idea  of  local  lim- 
its. It  presupposes  certain  boundaries  of  place  and  com- 
mand, beyond  which  the  squadron  could  not  lawfully  pro- 
ceed in  their  cruize.  Such*is  the  uniform  meaning  of  the 
word  in  the  British  naval  code,  and  if  would  be  difficult  to 
assign  it  another  meaning  in  our  own  statute,  without  in- 
volving absurdities  in  construction.  In  point  of  fact,  no 
station  was  assigned  to  Commodore  Decatur.  His  orders 
"Were  of  the  most  unlimited  nature.  He  was  at  liberty  to 
go  where  he  pleased,  consistently  with  the  great  object  of 
annoying  the  enemy.  The  exception  then,  supposed  in 
the  statute,  the  casus  fcederis^  if  the  expression  may  be 
used,  did  not  arise.  The  irresistible  conclusion  was,  that 
as  the  exceptions  of  the  statute  did  not  apply,  the  case  fell 
within  the  general  rule,  and  Commodore  Decatur  was  en- 
titled to  the  flag  twentieth  of  the  proceeds  of  the  captured 
vessel.(') 


(OPer  StoiiT,  J.  Decatur  V.  Chew.    Circuit  Court  of  the  U.  S.  for 
Massaclmsetts  District,  October  T.  1813.  M.  6, 


I 


/    * 


)     IfARITIME    CAI'TUIIES    AND    PRIZES'.  2D9 


CHAPTER  X. 

Of  the  effects  of  a  treaty  of  peace  on  questions  of 
prize. 

1.  An  armistice,  truce,  or  other  suspension  of  hostili- 
ties, binds  the  contracting  parties  from  the  date  of  its  con- 
clusion ;  but  it  cannot  have  the  force  of  law  with  regard  to 
citizens  or  subjects  of  each,  until  it  is  solemnly  published : 
And  as  an  unknown  law  imposes  no  obligation,  it  binds 
those  citizens  or  subjects  only  from  the  time  it  is  notified 
to  them.  So  that,  if  before  such  notification,  they  should 
have  committed  any  act  of  hostility,  they  are  not  punishable 
therefor.  But  as  the  sovereign  is  bound  to  fulfil  his  en- 
gagements, he  is  obliged  to  restore  prizes  made  subse- 
quent to  the  period  when  the  suspension  of  hostilities  is  to 
take  effect.(*) 

2.  So  also  of  a  treaty  of  peace.  It  binds  the  contract- 
ing parties  from  the  date  of  its  conclusion,  and  they  are 
obligated  to  carry  it  into  immediate  execution.  Hostilities 
are  immediately  to  cease,  unless  there  is  a  stipulation  to 
the  contrary.  But  it  binds  the  citizeiis  or  subjects  of  each 
party  only  from  the  time  it  is  notified  to  them.  They  arc 
consequently  not  responsible  for  hostilities  committed  by 
them  before  receiving  this  notice.  But  the  sovereign  is 
bound  to  compel  the  restitution  of  all  prizes  made  subse- 
quent to  the  time  when  the  pacification  is  to  take  eftcct.(^) 

(^0  Tattel,  L.  3.  c.  16-  §  239. 
.  K'O  11/.  L.  4.  c.  3.  $  24.   J2  J)aUa9,  40.  ^ain  et  al.  v,  the  Speedrel!- 


^KX}  LAW    OF  OHAP.  X, 

3.  But  those,  who  by  their  fault,  are  ignorant  of  the  con- 
clusion of  an  armistice  or  peace,  although  they  may  not.bc 
liable  to  punishment,%re  respctisible  for  the  damages  occa- 
sioned by  their  own  want  of  diligence.  Mere  negligence, 
and  above  all  slight  neglect,  levis  culpa,  may,  to  a  certain 
extent,  exonerate  from  penai  responsibility,  and  certainly 
does  not  merit  the  same  punishment  with  fraud;  but  can- 
not dispense  the  party  from  the  obligation  of  repairing  the 
injury  he  has  committed.  If  an  act  of  mischief  be  done 
hy  the  officers  of  the  sovereign,  though  through  ignorance, 
in  a  place  where  no  act  of  hostility  ought  to  have  been  ex- 
ercised, it  does  not  necessarily  follow  that  mere  ignorance 
of  that  fact  would  protect  the  officers  from  civil  responsi- 
bility. And  it  has  been  held  in  England,  that  if  by  arti- 
cles a  place  or  district  was  put  under  the  king's  peace,  and 
zn  act  of  hostility  was  afterwards  committed  therein,  the 
injured  party  might  have  a  right  to  resort  to  a  court  of 
prize  ;  to  shew  that  he  had  been  injured  by  this  breach, 
and  was  entitled  to  compensation ;  and  if  the  officer  acted 
through  ignorance;  his  own  government  must  protect  him : 
for  it  is  the  duty  of  government,  if  they  put  a  certain  dis- 
ttict  within  the  king's  peace,  to  take  care  that  due  notice 
shall  be  given  to  those  persons  by  whose  conduct  that 
l>eace  is  to  be  maintained  ;  and  if  no  such  notice  has  been 
given,  nor  due  diligence  used  to  give  it,  and  a  breach  of 
the  peace  is  committed  through  the  ignorance  of  those  per- 
sons, they  are  to  be  borne  harmless  at  the  expense  of  that 
government  whose  duty  it  was  to  have  given  that  no- 
tice.('=)  But  it  has  likewise  been  determined,  that  the  ac- 
tual wrong  doer  is  the  only  person  compellable  to  proceed 
to  adjudication,  or  answerable  in  damages,  in  the  prize 
court;  and  that  no  suit  can  be  commenced  against  the 
commander  of  the  station  not  privy  to  the  fact,  on  account 
of  hostilities  wrongfully  committed. ('^) 


o**^ 


C)  Vattel,  L.  3.  c.  IC.  §  239.    1  Jlobimm,  179.  The  Mentor.    ('')  I'M. 


^.•^ 


BIARITIME   CAPTURES   AND   PRIZES.  SOl 

4.  In  order  to  avoid  these  questions  it  is  a  frequent  prac- 
tice to  stipulate  ixi  the  preliminary  articles  of  peace  for  a 
cessation  of  hostilities  at  certain  times  in  different  places, 
and  for  the  restitution  of  property  taken  afterwards ;  and 
this  as  well  within,  as  beyond,  the  period  assigned  for  the 
ratification  of  the  preliminary  articles  themselves.  The 
same  provision  is  afterwards  inserted  in  the  definitive  trea» 

In  the  case  of  such  a  stipulation,  there  can  be  no  doubt 
as  to  captures  made  in  a  particular  latitude  after  the  period 
stipulated,  that  they  must  be  restored,  whether  the  captor 
knew  of  the  peace  or  not.     But  as  to  a  capture  made  before^ 
that  period  by  a  captor  having  notice  of  the   cessation  o£ 
hostilities,  the   authorities  are  divided  upon  the  question 
whether  the  captured  property  should  be  restored.     Upon 
principle  it  would  seem  that  as  the  periods  stipu'ated  are 
substituted  instead  of  the  date  of  the  treaty  itself  for  the 
cessation  of  captures,  they  ought  to  be  considered  as  if  made 
jlagrante  hello  where  they  take  place  before  the  expiration 
of  the  time  limited  in  the  par.icular  latitude.     Such  is  the 
opinion  of  M.  Bonnemant,  in  his  commentary  on  D'Ha- 
breu.     But  on  the  other  hand  it  may  be  said  that  the  ob» 
ject  of  such  stipulations  is  to  supplv  the  defect  o.'  positive 
notice  by  furnishing  a  rule  of  presumptive  evidence  in  its 
stead,  and  that  where  the  knowledge  of  ;he  fact  that  hosti- 
lities have  actually  ceased  is  brought  home   to  the  party^ 
there  is  no  such  defect  to  be  supplied.     The  legal  presump- 
tion is  overthrown  by  the  positive  fact.     This  is  the  opinion 
of  Valin,(^)  which  was  adopted  in  practice  by  the  council 
of  Prizes  at  Paris  in  deciding  upon  captures  of  British  and 
Austrian  vessels  made  after  the  treaties  of  Amiens  and 
Luneville,  but  before  the  expiration  of  the  periods  limited 

(<=)  5  liobiason,  189.    The  Adolphus  Fredcricls  In  U'.e  Ebftbs-    ^ 
Bi'oxuiCs  Civ.  &  Adm.  Law,  346. 

(0  Vdlin,  Traits  des  Pme?,  c.  3.  no.  5. 

39         # 


302  l-AW   OJf  CHAP.   X. 

for  captures,  in  cases  where  it  was  positively  proved  that 
the  French  captors  had  notice  of  the  existence  of  peace.(s) 

5.  It  has  been  determined  that  such  a  stipulation  ex- 
tends to  recaptures  as  well  as  to  original  captures. 
-  Thus  by  the  late  treaty  of  peace  between  the  United 
States  and  Great  Britain,  signed  at  Ghent  on  the  24th  De- 
cember, 1814,  and  ratified  on  the  18th  February,  1815,  it 
wis  reciprocally  agreed  that  all  vessels  and  effects  which 
should  be  taken  after  the  space  of  twelve  days  from  the 
ratification,  upon  all  parts  of  the  coast  of  North  America, 
from  the  latitude  23  N.  to  50  N.  and  as  far  eastward  in 
the  Atlantic  ocean  as  the  36th  degree  of  W.  longitude, 
should  be  restored  on  either,  side.  A  vessel,  originally 
British,  was  captured  by  a  private  armed  vessel  of  the  U- 
nitcd  States  on  the  8th  January,  1815,  and  recaptured  on 
the  7th  jMarch  by  a  British  ship  of  war.  '"^ 

There  were  three  parties  before  the  court :  the  officer 
and  crew  of  the  British  ship  of  war  claiming  salvage  as  for 
a  recapture  of  British  property;  the  original  owners  pray- 
ing the  vessel  to  be  delivered  to  them  on  payment  of  sal- 
vage ;  and  the  owners,  officers  and  crew  of  the  American 
privateer  pleading  the  second  article  of  the  treaty  of  peace. 
It  was  admitted  that  this  vessel  was  seized  before  the  time 
limited  for  captures  had  expired,  and  was  recaptured  after 
*hat  period.  It  was  argued  therefore  on  behalf  of  the 
owners  of  the  American  privateei>  that  this  vessel  became 
theirs  by  the  original  capture,  and  that  the  subsequent  re- 
capture was  not  lawful  under  the  treaty,  and  that  conse- 
quently the  vessel  ought  to  be  restored  to  them.  The  ori- 
ginal British  owners,  on  the  other  hand,  contended  that 
the  recapture  was  lawful,  and  claimed  restitution  under 
their  former  title. 

It  was  argued  tj;)at  the  British  priize  ^'cts  directed  that  if 
imy  vessel  taken  as  prize  shall  appear  to  have  belonged  it 

'  ■}  Jzuni,  Part  ?,  c.  4.  art.  I.  §  12. 


^fiSf^MARITIME   CAPTURE!!   AND    PRIZES.  .    a<33 

&viy  of  his  majesty's  subjects,  and  to  have  been  before  ta- 
ken by  the  enemy,  and  retaken,  it  shall  be  restored  to  the 
former  owner  on  the  payment  of  salvage.     But  the  court 
was  of  the  opinion  there  was  no  foundation  for  the  argu- 
ment deduced  from  that  clause,  which  is  merely  a  domes- 
tic regulation  to  settle  the   question  which  arises  between 
the  original  owner  and  the  recaptor.     In  general,  the  Bri- 
tish owner  receives  his  property,  and  the  recaptor  receives 
1^  a' salvage.     In  some  few  cases,  as  where  a  vessel  has  been 
fitted  out  as  a  ship  of  war,  and  consequently  the  danger  of 
the  recaptor  is  the  greater,  the  recaptor  is  rewarded  with 
the  whole.     The  mere  municipal  regulation  of  an  act  of 
parliament  cannot  be  intended  to  affect,  nor  can  it  legally 
affect,  the  rights  of  foreign  nations.     They  must  be  deci- 
ded by  the  general  law  of  nations,  and  by  particular  trea- 
ties. 

It  had  farther  been  argued,  and  a  great  deal  of  learning 
had  been  displayed  to  support  the  argument,  from  civilians, 
writers  upon  the  law  of  nations,  and  the  English  lawyers, 
that  the  first  captors  had  no  title  or  right  to  this  vessel  un- 
der their  seizure,  till  a  legal  adjudication  ;  that,  till  then, 
either  no  right  whatever  accrued,  or  at  least  only  to  the 
state,  and  that  therefore  the  owners  of  the  privateer  had 
no  interest  to  entitle  them  to  claim;  that  as  hostilities  were 
extended,  by  the  treaty,  in  some  parts  of  the  world  to  one 
hundred  and  twenty  days  after  the  ratification,  within 
which  period  this  recapture  was  made,  that  the  state  of 
war  still  subsisted,  and  this  very  privateer  might  have  been 
actually  employed  in  capturing  British  ships  at  the  time 
when  the  owners  appeared  as  claimants  in  a  British  court 
of  prize ;  and  finally,  that  the  treaty  not  having  specified 
iiecaptures,  did  not  extend  to  them. 

The  rule  as  to  the  precise  time  when  the  right  of  the 
captor  shall  vest,  and  which  is  understood  to  be  the  same 
in  the  United  States  as  in  Great  Britain,  is  chiefly  a  regu- 
lation as  between  the  state  and  the  captor.     As  capturing 


^ 


304  I. AW   Of'  CHAP.  S. 

ships,  vrhether  belonging  to  the  state  or  to  individuals,  act 
p.s  a  part  of  cbe  public  force,  it  is  not  a  question  here  mere- 
ly with  the  individual  captors  themselves  but  with  the  na- 
tion at  large,  and  it  is  not  affected  by  any  such  internal  re- 
gulation. The  rule  was  moreover  introduced  to  prevent 
the  right  of  recapture  from  being  defeated  by  transfers  to 
neutrals  immediately  upon  the  seizure.  To  give  the  ori- 
ginal owners  the  chance  of  recapture,  it  was  held  that  such 
transfers  were  not  valid  till  after  condemnation.  In  truth  y 
the  right  is  complete  upon  the  capture,  as  has  been  observ- 
ed by  writers  of  authority,  since  there  is  a  just  title,  that 
pf  war,  the  animus  possidendi  under  that  title,  and  the  ac- 
tual possession,  which  is  sufficient  to  constitute  a  perfect 
right,  under  all  general  principles  of  law.  The  extension 
of  the  time  was  introduced  by  mutual  consent  and  practice 
for  particular  purposes,  and  is  merely  arbitrary,  as  is  evi- 
dent froni  the  fluctuation  which  has  prevailed  relating  to  it, 
in  the  varying  and  successive  rules  of  twenty-four  hours, 
pf  infra  prjesidia^  and  other  such  securities,  till  it  finally 
fettled  down  into  the  condemnation.  */    \ 

But,  without  entering  farther  into  these  nice  and  ab-  J'"'^''^ 
Stract  questions,  it  is  sufficient  for  the  present  purpose, 
that  by  the  capture,  the  privateer  acquired  a  legal  right  of 
possession,  which  is  undenijjble.  It  was  admitted  that  the 
vessel  was  taken  in  time  of  war,  from  an  enemy  by  a  ship 
of  war,  regularly  commissioned;  a, lawful  possession  was 
therefore  admitted.  After  the  time  fixed  by  the  treaty, 
ivithin  the  respective  limits  assigned,  a  state  of  peace  sub- 
fiisted  between  the  two  countries,  as  absolute  and  complete 
as  if  no  farther  hostilities  could  be  any  where  exercised, 
and  as  if  the  treaty  had  been  concluded  for  a  century. 

The  true  question  then  was,  whether  a  lawful  possession 
can  be  divested  by  an  hostile  force  in  time  of  peace  ?  JNIere- 
iy  to  put  this  quesiion  is  sufficient  to  answer  it.  Peace  is 
that  state  in  which  rights  are  discussed  and  cliaims  made 
y^TT-icably,  and  by  the  ordinary  proceedings  of  courts  of 


>^'  '       MARITIME   CAPTURES    AND    PRIZES.  30b 

law ;  to  settle  them  by  violence  Is  peculiar  to  a  state  of  war. 
The  restoration  of  peace  annuls  all  modes  of  force ;  they 
become  unlawful.  There  can  be  no  lawful  fighting  in  time 
of  peace.  The  question  is  not  limited  to  this  particular 
case.  Here  indeed  there  was  no  shedding  of  blood,  but 
it  was  a  seizure  by  force,  a  mere  submission  to  a  superior 
power.  If  it  was  lawful  so  to  take  a  vessel,  it  would  be 
equally  lawful  to  apply  force  in  case  of  resistance.  A  re- 
capture might  equally  be  made  by  a  battle.  Any  of  the 
British  ships  of  war  under  the  same  circumstances,  might 
be  retaken  from  the  Americans,  or  any  of  theirs  might  be 
retaken  by  the  British  in  the  most  sanguinary  engagements. 
If  nothing  short  of  a  sentence  of  condemnation  could  ex- 
tinguish the  right  of  recapture  it  might  exist  to  a  very  long 
and  indefinite  period.  Ships  taken  in  the  East  Indies 
might  be  a  twelve-month  or  more  before  they  could  get 
home  to  be  condemned.  Can  that  be  a  state  of  peace  in 
which  ships  might  lawfully  engage,  or  in  which  scenes  of 
bloodshed  between  the  vessels  of  two  nations  might  law- 
fully be  exhibited  ?  Can  such  a  state  subsist  after  it  has 
been  expressly  agreed  by  a  treaty  that  all  hostilities  shall 
t  ease  ?  Is  the  forcible  capture  of  a  vessel,  or  is  it  not,  an 
act  of  hostility  ?    If  it  is,  it  is  prohibited  by  the  treaty. 

It  was  said  that  the  treaty  does  not  stipulate  that  ves- 
sels recaptured  shall  be  restored.  The  v/ords  are  as  gene- 
ral as  possible.  The  restitution  is  not  confined  to  vessels 
*'  belonging  to  the  subjects  of  the  United  States,"  expres- 
sions to  be  found  in  many  treaties,  and  which,  or  some- 
thing equivalent,  would  probably  have  been  introduced,  if 
such  had  been  the  meaning  of  the  two  governments,  but 
the  words  are,  *•  all  vessels  and  effects."  To  say  that  a 
recapture  is  not  a  capture  is  a  mere  finesse  and  equivoca- 
tion. Such  recaptures,  as  well  as  other  captures,  arc  li- 
terally comprehended  under  the  treaty ;  they  are  "  ves- 
sels an4  effects  which  have  been  taken"  since  the  time  li- 
mitecl. 


^06  lAW   O^  '  CKAP.  X. 

Independent  of  the  hostility  of  the  g,ct  of  recapture,  and 
of  any  particular  stipulations  in  the  treaty,  the  right  of  pos- 
session in  the  captor  was  completed  by  the  intervention  ot 
peace,  and  all  right;  of  recovering  in  the  original  owner  was 
barred — The  uti  possidetis  is  the  basis  of  every  treaty  of 
peace,  unless  so  far  as  it  is  otherwise  agreed.  All  things 
continue  in  the  state  in  which  they  are  found  when  the 
treaty  takes  effect,  unless  it  is  declared  otherwise— Where 
the  tree  falls  there  it  must  lie.  All  the  rules  to  determine 
'when  the  title  by  capture  is  fmal  are  founded  upon  one 
principle  laiddov/nby  Grotius,  that  the  captui-eis  complete 
when  all  hope  of  recovery  is  lose ;  but  all  hope  of  recovery 
is  certainly  lost  when  the  rernvery  becomes  unlawful.  The 
conclusion  of  a  peace  is  therefore  as  effectual  for  that  pur- 
pose, as  carrying  infra  proesidia^  condemnation,  or  any  oth- 
er .circumstances  which  have  been  fixed  upon.  Martens, 
and  other  writers,  who  had  been  quoted,  admit,  that  peace 
gives  the  final  and  perfect  title  to  captures.  And  with 
respect  to  a  supposed  recovery  of  this  vessel  to  the  former 
owner  by  a  sort  of  postliminium,  it  is  justly  observed  by 
Vattel.  (Liv.  III.  Ch.  14.  §  226)  that  '<  since  the  things 
t)f  which  the  treaty  of  peace  says  nothing,  continue  in  the 
state  in  which  they  were  found  at  the  moment  when  the 
peace  was  concluded,  and  are  tacitly  ceded  to  the  pos- 
sessor, the  right  oi  postlwmiium  has  no  place  after  peace  is 
concluded;  it  relates  entirely  to  the  state  of  war." 

An  argument  had  been  raised,  and  much  compassion  ex- 
cited, by  a  supposition,  that,  if  this  prize  was  restored,  the 
British  master  and  crew  found  on  board  must  be  restored 
likewise  to  a  state  of  captivity.  For  this  there  was  no 
foundation  whatever.  The  treaty  provided  that  from  the 
ratification  there  shall  be  an  universal  peace  between  the 
people  of  the  respective  countries,  and  they  can  no  longev 
hold  each  other  in  a  ^tatc  of  capti\ity. 


I 


#> 


MARITIME   CAPTURES    AND    PRIZES.  307  , 

Restitution  was  therefore  decreed  to  the  American  pri- 
vate er.('') 

6.  A  treaty  of  peace  has  the  effect  of  quieting  all  titles 
of  possession  arising  from  the  war.(')-  Therefore  where 
a  question  arose  as  to  the  title  of  a  neutral  purchaser  un- 
der consular  and  other  condemnations,  it*  was  held  that  the 
intervention  of  peace  had  the  effect  of  curing  v.'hatever  de- 
fects might  otherwise  exist  in  such  title.  It  was  admitted 
that  as  to  the  enemy  it  would  have  this  effect,  and  that  it 
would  not  be  lawful  to  look  back  beyond  the  general  am- 
nesty, to  examine  the  title  of  his  possession.  But  if  the 
vessel,  or  other  thing,  has  been  transferred  to  the  subject 
of  another  country,  he  also  v/ill  be  entitled  to  the  same  ben- 
efit from  the  treaty,  as  the  captor  himself  would  have  been, 
if  he  had  continued  in  possession.  For  otherwise  it  could 
not  be  said  that  the  intervention  of  peace  would  have  the 
effect  of  quieting  the  possession  of  the  enemy;  because  if  the 
neutral  purchaser  was  to  be  dispossessed,  he  would  have 

pL  a  right,to  resort  back  to  the  belligerent  seller,  and  demand 
wj^-  compensation  from  him.  Neither  will  the  supervening 
*'!-  of  a  new  war  disturb  the  title.  It  can  have  no  effect  on 
neutral  purchasers  who  stand  in  the  same  situation  as  be- 
fore. Those  puixhasers,  though  no  parties  to  the  treaty, 
are  entitled  to  the  full  benefit  of  it;  because  they  derive 
their  title  from  those  who  are.C^) 

7.  We  have  before  seen  that  in  order  to  induce  the  con- 
fiscation of  enemy's  property,  found  Avithin  the  territo- 
ry of  the  belligerent  state  at  the  declaration  cf  war,  some  act  "*" 
of  the  government,  other  than  the  declaration  itself,  is  es- 
sential ;  and  that  such  property  might  be  claimed  upon  the 
termination  of  hostilities,  unless  previously  confiscated.  Q} 

(•■■)  Tci'  Dii.  CaoKE.  The  Legal  Tender.  Vice  Adniiralty  Court  a*: 
Halifax,  Aprp,  '20lh,  1815. 

(*)  Vatiel,  C  4.  c.  2.  §  22.  , 

C^)  6  Robitison,  138.  liie  Schoone  Sophie- 


SOS  LAW  OP  CRAP.  X. 

It  has  also  been  determined  that  where  a  vessel  had  been 
'  captured,  and  restored  with  costs  and  damages,  but  no  fur- 
ther proceedings  took  place  at  the  time  in  consequence  of 
the  breaking  out  of  war  with  the  claimant's  country— his 
rights  revived  on  the  return  of  peace;  no  step  being  taken 
hi  the  interval  of  war  declaratory  of  the  forfeiture  of  those 
rights  to  the  government.  The  intervention  of  hostilities 
puts  the  property  of  the  enemy  in  such  a  situation  that  con- 
fiscation may  ensue ;  but  unless  some  step  is  taken  for  that 
purpose,  unless  there  is  some  legal  declaration  of  the  for- 
feiture, the  light  of  the  owner  revives  on  the  return  of 
peace.C") 

C")  Ed-uard^i  62.    The,  JTeustra  Senora  de  Los  Dolores. 


# 


-W 


m 


APPENDIX 

No.  I. 


L-ETTER    FROM    SIR    W.    SCOTT    ATSTD    SIR    J.    NICHOLL^ 
TO    MR.    JAY. 

SIR, 

I  HAVE  the  honour  of  sending  the  paper  drawn  up  hy 
Dr.  Nicholi  and  myself;  it  is  longer  and  more  particular 
than  perhaps  you  meant;  but  it  appeared  to  be  an  error 
on  the  better  side,  rather  to  be  too  minute,  than  to  be  too 
reserved  in  the  information  we  had  to  give ;  and  it  will  be 
in  your  excellency's  power  either  to  apply  the  whole  ot 
such  parts  as  may  appear  more  immediately  pertinent  to 
the  objects  of  your  inquiry  =. 

I  take  the  liberty  of  adding^  that  I  shall  at  all  times  think 
myself  much  honoured  by  any  communications  from  you, 
either  during  your  stay  here,  or  after  your  return,  on  any- 
subject  in  which  you  may  suppose  that  my  situation  can  give 
me  the  power  of  being  at  all  useful  to  the  joint  interests 
of  both  countries  ; — ^^If  they  should  ever  turn  upon  points 
in  which  the  duties  of  my  official  station  appear  to  me  to 
impose  upon  me  an  obligation  of  reserve,  I  shall  have  no 
hesitation  in  saying,  that  I  feel  them  to  be  such  :  On  any 
other  points,  on  which  you  may  wish  to  have  an  opinion. 
of  mine,  you  may  depend  on  receiving  one,  that  is  formed 
with  as  much  care  as  I  can  use,  and  delivered  with  all 
possible  frankness  and  sincerity. 

I  have  the  honour  to  be. 

With  great  respect,  &c. 

WILLIAM  SCOTT, 

Omm^nsj  Sfj}f.  lot /i,  1794, 
49 


310  APPENDIX* 

Paper  inclosed  in  the  foregoing  letter, 

SIR, 

We  have  the  honour  of  transmitting,  agreeably  to  your 
excellency's  request,  a  statement  of  the  general  principles 
of  proceeding  in  prize  causes,  in  Bricish  courts  of  admi- 
ralty, and  of  the  measures  proper  to  be  taken  when  a  ship 
and  cargo  are  brought  in  as  prize  within  their  jurisdic- 
tions. 

The  general  principles  of  proceeding  cannot,  in  our 
judgment,  be  stated  more  correctly  or  succinctly,  than  we 
find  them  laid  down  in  the  following  extract  from  a  report 
made  to  his  late  Majesty  in  the  year  1753,  by  Sir  George 
Lee,  then  judge  of  the  prerogative  court.  Dr.  Paul,  his 
majesty's  advocate  general,  Sir  Dudley  Rider,  his  majes- 
ty^s  attorney  general,  and  Mr.  Murray  (afterwards  Lord 
Mansfield)  his  majesty's  solicitor  general. 

*'  When  tv/o  powers  are  at  war,  they  have  a  right  to 
make  prizes  of  the  ships,  goods,  and  effects  of  each  other, 
upon  the  high  seas  :  Whatever  is  the  property  of  the  ene- 
my, may  be  acquired  by  capture  at  sea  i  but  the  property 
of  a  friend  cannot  be  taken  provided  he  observes  his  neu- 
trality. 

"  Hence  the  law  of  nations  has  established, 

*'  That  the  goods  of  an  enemy,  on  board  the  ship  of  p. 
friend,  may  be  taken. 

"  That  the  lawful  goods  of  a  friend,  on  board  the  ship  of 
an  enemy,  ought  to  be  restored. 

"  That  contraband  goods,  going  to  the  enemy,  though 
the  property  of  a  friend,  may  be  taken  as  prize ;  because 
supplying  the  enemy  with  what  enables  him  better  to  car- 
ry on  the  war,  is  a  departure  from  neutrality. 

"  By  the  maritime  law  of  nations,  universally  and  im- 
meraorially  received,  there  is  an  established  method  of  de- 
termination, whether  the  capture  be,  or-  be  not^  lawful 
nrize. 


r 


APPENDIX.  311 

Before  the  ship,  or  goods,  can  be  disposed  of  by  the 
captor,  there  must  be  a  regular  judicial  proceeding,  where- 
in both  parties  may  be  heard  ;  and  condemnation  thereup- 
on as  prize,  in  a  court  of  admiralty,  judging  by  the  law  of 
nations  and  treaties. 

"  The  proper  and  regular  court,  for  these  condemna- 
tions,  is  the  court  of  that  state  to  whom  the  captor  be- 
longs. 

"  The  evidence  to  acquit  or  condemn,  with  or  without^ 
eosts  or  damages,  must,  in  the  first  instance,  come  merely 
from  the  ship  taken,  viz.  tht^pi^pers  on  board,  and  the  ex- 
amination on  oatli^  of  the  master,  and  other  principal  of- 
ficers ;  for  which  purpose  there  are  officers  of  admiralty  in 
all  the  considerable  sea  ports  of  every  maritime  power  at 
war,  to  examine  the  captains,  and  other  principal  officers 
of  every  ship,  brought  in  as  a  prize,  upon  general  and  im*^ 
partial  interrogatories  :   If  there  do  not  appear  from  thence  ^^ 

ground  to  condemn,  as  enemy's  property  or  contraband 
goods  going  to  the  enemy,  there  must  be  an  acquittal,  un- 
less from  the  aforesaid  evidence,  the  property  shall  appear 
so  doubtful,  that  it  is  reasonable  to  go  into  farther  proof 
thereof. 

"  A  claim  of  ship,  or  goods,  must  be  supported  by  the 
oath  of  some  body,  at  least  as  to  belief. 

"  The  law  of  nations  requires  good  faith  ; — Therefore 
every  ship  must  be  provided  with  complete  and  genuine 
papers ;  and  the  master  at  least  should  be  privy  to  the 
truth  of  the  transaction. 

"  To  enforce  these  rules,  if  there  be  false  or  colourable 
papers  ;  if  any  papers  be  thrown  overboard  ;  if  the  master 
and  officers  examined  in  preparatorio,  grossly  prevaricate  ; 
if  proper  ship's  papers  are  not  on  board;  or  if  the  master 
and  crew  cannot  say,  whether  the  ship  ©r  cargo  be  the 
property  of  a  friend  or  enemy,  the  law  of  nations  allows, 
according  to  the  different  degrees  of  misbehaviour, or  suspi- 
cion; arising  from  the  fault  of  the  ship  taken,  and  other  cir- 


312.  appendix:. 


cumstances  of  tlie  case,  costs  to  be  paid,  or  not  to  be  ft- 
ct-ived,  by  che  claimant,  in  case  of  acquittal  and  restitu- 
tion : — On  the  othi^r  h.-nd,  if  a  seizure  is  made  without 
probable  cause,  the  capture  is  adjudged  to  pay  costs  and 
damages  :  For  which  purpose  all  privateers  are  obliged  to 
give  security  for  their  good  behaviour  ;  and  this  is  referred 
to,  and  expressly  stipulated  by  many  treaties. 

*'  Though  from  the  ship's  papers,  and  the  preparatory  ex- 
aminations, the  property  does  not  suHiciently  appear  to  be 
neutral,  the  claimant  is  often  indulged  with  time  to  send 
over  affidavits  to  supply  that  defect;  if  he  will  not  shew 
the  property  by  sufficient  affidavits,  to  be  neutral,  it  is  pre- 
sumed to  belong  to  the  enemy.  Where  the  property  ap- 
pears from  evidence  not  on  board  the  ship,  the  captor  is 
justified  in  bringing  her  in,  and  excused  paying  costs,  be- 
cause he  is  not  in  fault;  or,  according  to  the  circum- 
stances of  the  case,  may  be  justly  entitled  to  receive  his 
costs. 

"  If  the  sentence  of  the  court  of  admiralty  is  thought  to 
be  erroneous,  there  is  in* every  maritime  country,  a  superior 
court  of  review,  consisting  of  the  most  considerable  per- 
sons, to  which  the  parlies  who  think  themselves  aggrieved, 
may  appeal ;  and  this  superior  court  judges  by  the  same 
rule  which  governs  the  court  of  admiralty,  viz.  the  law  of 
nations,  and  the  treaties  subsisting  with  that  neutral  power, 
whose  subject  is  a  party  before  them. 

*'  li  no  appeal  is  offered,  it  is  an  acknowledgment  of  the 
justice  of  the  sentence  by  the  parties  themselves,  and  con- 
clusive. 

"  This  manner  of  trial  and  adjudication  is  supported,  air 
luded  to,  and  enforced,  by  many  treaties. 

*'  in  this  mettled,  all  captures  at  sea  were  tried,  during 
ihe  lasi^ar,  by  Great  Britain,  France,  and  Spain,  and  sub- 
mitted'to  by  the  neutral  powers  j— -In  this  method,  by 
courts  of  admiralty  acting  according  to  the  law  of  nations, 
i^jii^  particular  treaties,  all  captures  at  sea  have  immemori- 


# 


APPENDIX.  <3it* 

ally  been  judged  of  in  every  country  of  Europe.  Any 
other  method  of  trial  would  be  manifestly  unjust,  absurd 
and  impracticable." 

Such  are  the  principles  which  govern  the  proceedings  of 
the  prize  courts. 

The  following  are  the  measures  which  ought  to  be  taken 
by  the  captor,  and  by  the  neutral  claimant  upon  a  ship  and 
cargo  being  brought  in  as  prize. 

The  captor  immediately  upon  bringing  his  prize  into 
port,  sends  up  or  delivers  upon  oath  to  the  registry  of  the 
court  of  admiralty  all  papers  found  on  board  the  captured 
ship.  In  the  course  of  a  few  days,  the  examinations  in  pre- 
paratory of  the  captain  and  some  of  the  crew,  of  the  cap- 
tured ship,  are  taken  upon  a  set  of  sraiiding  interrogatories, 
before  the  commissioners  of  the  port  to  which  the  prize  is 
brought,  and  which  are  also  forwarded  to  the  registry  of 
the  admiralty  as  soon  as  taken.  A  monition  is  extracted 
by  the  captor  from  the  registry,  and  sei-ved  upon  the  royal 
exchange,  notifying  the  capture,  and  calling  upon  all  per- 
sons interested  to  appear  and  shew  cause,  why  the  ship  and 
goods  should  not  be  condemned.  At  the  expiration  of 
twenty  days,  the  monition  is  returned  into  the  registry 
with  a  certificate  of  its  service,  and  if  any  claim  has  been 
given,  the  cause  is  then  ready  for  hearing,  upon  the  evi- 
dence arising  otxt  of  the  ship's  papers,  and  preparatory  ex- 
aminations. 

The  measures  taken  on  the  part  of  the  neutral  master  or 
proprietor  of  the  cargo,  are  as  follows  : 

Upon  being  brought  into  port,  the  master  usually  makes 
a  protest,  which  he  forwards  to  London,  as  instructions  (or 
"with  such  further  directions  as  he  thinks  proper)  either  to 
the  correspondent  of  his  owners,  or  to  the  consul  of  his  na- 
tion, in  order  to  claim  the  ship,  and  sUch  parts  of  the  cargo 
as  belong  to  his  owners,  or  with  which  he  was  particularly 
entrusted ;  Or  the  master  hiDiself,  as  soon  as  he  has  under- 


314  APPENDiiw. 


wt 

# 


gone  his  examination,  goes  to  London  to  take  the  necessa-* 
yy  steps. 

The  master,  correspondent,  or  consul  applies  to  a  proc- 
tor, who  prepares  a  claim  supported  by  an  affidavit  of  the 
claimanc,  stating  briefly,  to  whom  as  he  believes,  the  ship 
and'  goods  claimed,  belong,  and  that  no  enemy  has  any 
right  or  interest  in  them  :  Security  must  be  given  to  the 
amount  of  sixty  pounds  to  answer  costs,  if  the  case  should 
appear  so  grossly  fraudulent  on  the  part  of  the  claimant  as 
^  to  subject  him  to  be  condemned  therein. 

If  the  captor  has  neglected  in  the  mean  time,  to  take 
the  usual  steps,  (but  which  seldom  happens,  as  he  is  strict- 
ly enjoined  both  by  his  instructions  and  by  the  prize  act 
to  proceed  immediately  to  adjudication)  a  process  issues 
-against  him  on  the  application  of  the  claimant's  proctor,  to 
bring  in  the  ship's  papers  and  preparatory  examinations^ 
^        and  to  proceed  in  the  usual  way. 

fAs  scon  as  the  claim  is  given,  copies  of  me  ship'a  papers 
.  *  and  examinations  are  procured  from  the  registry,  and  upon 
the  return  of  the  monition  the  cause  may  be  heard.  It 
however  seldom  happens  (owing  to  the  great  pressure  oi 
business,  especially  at  the  commencement  of  a  war)  thai 
causes  can  possibly  be  prepared  for  hearing  immediately 
upon  the  expiration  of  the  time  for  the  return  of  the  moni- 
.^  tion  ;  In  that  case,  each  cause  must  necessarily  take  its  re- 
gular turn  :  correspondent  measures  must  be  taken  by  the 
iieutral  master  if  carried  within  the  jurisdiction  of  a  vice 
v'.dmlralty  court,  by  giving  a  claim  supported  by  his  affida- 
vit, and  olTering  security  for  costs,  if  the  claim  should  be 
.      pronounced  grosj^:ly  fraudulent. 

Tf  tlic  claimant  be  dissatisfied  with  the  sentence,  his 
proctor  enters  an  appeal  in  the  registry  of  the  court  where 
'■-he  scntcr.r  ;;iven,  or  before  a  notary  public  (which 

•cgnlarly  hiK..  .lu  .je  entered  v/ithin  fourteen  days  after  the 
-.:ntence)  ai!,l  he  afterwards  applies  at  the  registry  of  the 
?>r !    '  r  appeal  in  pi'/.e  causes  (which  is  hckl  at  the  same 


i 


ArPENDIX.  31^ 


place  as  the  registry  pf  the  high  court  of  admiralty')  for  an 
instrument  called  an  inhibition,  and  which  shou|d  be  taken 
out  within  three  months  if  the  sentence  be  in  the  high 
court  of  admiralty,  and  within  nine  months,  if  in  a  vice  ad- 
miralty court,  but  may  be  taken  out  at  later  periods,  if  a 
reasonable  cause  can  be  assigned  for  the  delay  that  has  in- 
tervened. This  instrument  directs  the  judge,  wliose  sen- 
tence is  appealed  from,  to  proceed  no  further  in  the  cause  '. 
it  directs  the  registrar  to  transmit  a  copy  of  al!  the  proceed- 
ings of  the  inferior  court :  and  it  directs  the  party  who 
has  obtained  the  sentence  to  appear  before  the  superior  tri- 
bunal to  answer  to  the  appeal.  On  applying  for  this  inhi- 
bition, security  is  given  on  the  part  of  the  appellant,  to  the 
amount  of  two  himdred  pounds  to  answer  costs,  in  case  it 
should  appear  to  the  court  of  appeals,  that  the  appeal  is 
merely  vexatious.  The  inhibition  is  to  be  served  upon  the 
judge,  the  registrar,  and  the  adverse  party  and  his  proc- 
tor, by  shewing,  the  instrument  under  seal,  and  delivering 
a  note  or  copy  of  the  contents.  If  the  party  cannot  be 
found,  and  the  proctor  will  not  accept  the  service,  the  in- 
jlrament  is  to  be  served  '^  viis  et  modis"  that  is  by  affix- 
ing it  to  the  door  of  the  last  place  of  residence,  or  by  hang- 
ing it  upon  the  pillars  of  the  royal  exchange.  That  part 
of  the  process  above  described,  which  is  to  be  executed 
abroad,  may  be  performed  by  any  person  to  whom  it  is 
committed,  and  the;f6rmal  part  at  home  is  executed  by 
the  officer  of  the  court.  A  certificate  of  the  service  is  en- 
dorsed upon  the  back  of  the  instrument,  sworn  before  a 
surrogate  of  the  superior  court,  or  before  a  notary  public, 
if  the  service  is  abroad. 

If  the  cause  be  adjudged  In  a  vice  admiralty  couri,  it  is 
■jsual  upon  entering  an  appeal  there,  to  procure  a  copy  of 
rhe  proceedings  v/hich  tlie  appellant  sends  o\er  to  his  ccr- 
respoudciit  in  England,  who  carries  it  to  a  proctor,  and  the 
.>ame  steps  are  taken  to  procure  and  serve  the  inhibition,  as 
where  the  cr.use  has  been  adjudge;:^   "n  ♦^e  high  court,  of 


*^. 


■31t>  afpen'dix. 


acirairalty.  15at  if  a  copy  of  the  proceedings  cannot  be 
procured  in  due  time.,  an  inhibition  may  be  obtained,  by 
'ocnding  over  a  copy  of  the  instrument  of  appeal,  or  by  writ- 
ing to  the  correspondent  an  account  only  of  the  time  and 
substance  of  the  sentence. 

Upon  an  appeal,  fresh  evidence  may  be  introdut'ed  if 
upon  hearing  the  cause  the  lords  of  appeal  shall  be  of  opi- 
nion, that  the  case  is  of  such  doubt,  as  that  farther  proof 
ought  to  have  been  ordered  by  the  court  below. 

Further  proof  usually  consists  of  affidavits '  made  by  the 
asserted  proprietors  of  the  goods,  in  which  they  are  some- 
times joined  by  their  clerks  and  others  acquainted  with  the 
transaction  and  with  the  real  property  of  the  gcods  claim- 
ed. In  corroboration  of  these,  affidavits  may  be  annexed, 
original  correspondence,  duplicates  of  bills  of  lading,  invoi' 
ces,  extracts  from  bocks,  &:c.  These  papers  must  be  proved 
by  the  affidavits  of  persons  who  can  speak  to  their  authen- 
ticity. And  if  copies  or  extracts,  they  should  be  collated 
and  certified  by  public  notarifs.  The  affidavits  are  sworn 
before  the  magistrates  or  others  competent  to  administer 
oaths  in  the  country  where  they  are  made,  and  authenti- 
cated by  a  certificate  from  the  British  consul. 

The  degree  of  proof  to  be  required  depends  upori  the 
degree  of  suspicion  and  doubt,  that  belori'gs  to  the  case. 
In  cases  of  heavy  suspicion  and  great  importance,  the'court 
may  order  what  is  called  "  plea,  and  proof,"  that  is,  in- 
stead bf  admitting  a.Tuhu  Its  and  clcxu.r.i-nts  introduced  b|r 
the  claimants  only,  each  party  is  at  liberty  to  allege  in  re- 
);u!ar  pleadings  such  circumstances  as  may  tend  to  acquit 
or  tc)  condemn  the  capture,  aitd  to  examine  witnesses  in 
';e  allegations,  to  whom  the  adverse  party  inay 
.u..  '■  liitiiTogatories.     The  depositions  of  the  wit- 

in  ■  >.n  i'l  writing;  if  the  witnesses  are, to  be  ex- 

aiuiufd  a!)road,  a  commission  issues  for  that  purpose,— but 
in  no  ca-jc  Is  It  necessary  for  them  to  come  to  Englandi 
"rheiic  solemn  proceedings  are  not  often  resorted  to. 


Standing  commissions  may  be  sent  to  America  for  the 
j^encral  purpose  of  receiving  examinations  of  witnesses  in 
all  cases  where  the  court  may  find  it  necessary  for  the 
purposes  of  justice,  to  decree  an  enquiry  to  be  conducted 
in  that  manner. 

With  respect  to  captures  and  condemnations  at  Marti- 
nicO)'  which  are  the  isubjects  of  another  inquiry  contained 
in  your  note,  we  can  only  answer  in  general,  that  we  are 
Hot  informed  of  the  particulars  of  such  captures  and  con- 
demnations, but  as  we  know  of  no  legal  court  of  admiralty 
established  at  Martinico,  we  are  clearly  of  opinion  that  the 
legality  of  any  prizes  taken  there,  must  be  tried  in  the 
high  court  of  admiralty  of  England,  upon  claims  given,  in 
the  manner  above  described,  by  such  persons  as  may  think 
themselves  aggrieved  by  the  said  captures. 

We  have  the  honor  to  be,  &c. 

(Signed)         WILLIAM  SCOTT. 
JOHN  NICHOLL, 

<zo7nmanSy  Septemher  wi/i,  1794. 


Report  ^c.  Tcf erred  to  in  the  preceding  letter. 


4 


TO  THE  kint;  s  most  excellent  majesty. 
31ay  it  please  ynur  Majesty y 


In  obedience  to  your  majesty's  commands,  signified  to  us 
by  his  grace  the  duke  of  Newcastle,  we  have  taken  the 
memorial,  sentence  of  the  Prussian  commissioners,  and 
lists  marked  A.  and  B.  which  were  delivered  to  his  grace 
'by  Monsieur  Michell,  the  Prussian  secretary  here,  on  the 
23d  of  November  last;  and  also  the  ^xxnitdi Exposition  des: 
Motijs^  &c.  which  was  delivered  to  his  grace  the  13th 
of  December  last,  into  our  serious  consideration;  and  w« 


31S  APPENDIX. 

have  directed  the  proper  officer  to  search  the  registers  of 
the  court  of  admiralty,  and  inform  us  how  the  matter  ap- 
peared from  the  proceedings  there,  in  relation  to  the  cases 
mentioned  in  the  said  lists  A.  and  B.  which  he  has  accord- 
ingly done. 

And  your  majesty  having  commanded  us  to  report  our 
opinion  concerning  the  nature  and  regularity  of  the  pro- 
ceedings under  the  Prussian  commission  mentioned  in  the 
said  memorial,  and  of  the  claim  or  demand  pretended  to 
be  founded  thereupon,  and  how  far  the  same  are  consist- 
ent with,  or  contrary  to,  the  law  of  nations,  and  any  trea- 
ties subsisting  between  your  majesty  and  the  king  of  Prus- 
sia, the  established  rules  of  admiralty  jurisdiction,  and  the 
laws  of  this  kingdomt 

For  the  greater  perspicuity,  we  beg  leave  to  submit  our 
thoughts  upon  the  whole  matter  in  the  following  method  : 

1st,  To  state  the  clear  established  principles  of  law. 

2dly,  To  state  the  fact. 

Sdly,  to  apply  the  law  to  the  fact. 
.  4thly,  To  observe  upon  the  questions,  rules  and  reason- 
ing alleged  in  the  said  memorial,  sentence  of  the  Prussian 
commissioners,  and  Exposition  des  Motifs^  &c.  which  carry 
appearances  of  objections  to  what  we  shall  advance  upon 
the  former  heads. 

First,  as  to  the  Law. 

When  two  powers  are  at  war,  they  have  a  right  to  make 
prizes  fif  the  ships,  goods,  and  effects  of  each  other  upon 
the  high  seas  ;  whatever  is  the  property  of  the  enemy  may 
h  :  ;, 'quired  by  capture  at  sea;  but  the  property  of  a 
friend  cannot  be  taken,  provided  he  observed  his  neu- 
trality.'- 

Hencfethe  lav/  of  nations  has  established, 

That  the  goods  of  an  enemy  on  board  the  ship  of  n 
friend  may  be  taken. 

That  the  lawful  goods  of  a  friend  on  bo^rd  the  ship  of 
an  enemy  ought  to  be  restored. 


APPENDIX.  319 

That  contraband  goods  going  to  the  enemy,  though  the 
property  of  a  friend,  may  be  taken  as  prize,  because  sup- 
plying the  enemy  with  What  enables  him  b.:ttcr  to  carry  on 
the  war  is  a  departure  from  neutrality. 

By  the  maritime  law  of  nations  universally  and  imme- 
morially  reeeived,  there  is  an  established  method  of  deter- 
mination, whether  the  capture  be,  or  be  not,  lawful  prize. 

Before  the  ship  or  goods  can  be  disposed  of  by  the  cap- 
tor, there  must  be  a  regular  judicial  proceeding  wherein 
both  parties  may  be  heard,  and  condemnation  thereupon  as 
prize  in  a  court  of  admiralty,  judging  by  the  law  of  nations 
and  treaties. 

The  proper  and  regular  court  for  these  condemnations, 
is  the  court  of  that  state  to  whom  the  captor  belongs. 

The  evidence  to  acquit  or  condemn,  with  or  without 
costs  or  damages,  must,  in  the  first  instance,  come  merely 
from  the  ship  taken,  viz,  the  papers  on  board,  and  the  ex- 
amination on  oath  of  the  master  and  other  principal  offi- 
cers: for  which  purpose  there  are  officers  of  admiralty  in 
all  the  considerable  seaports  of  every  maritime  power  at 
war,  to  examine  the  captains  and  other  principal  officers  of 
every  ship  brought  in  as  prize^  upon  general  and  impar- 
tial interrogatories.  If  there  do  not  appear  from  thence 
ground  to  condemn  as  enemy's  property,  or  contraband 
goods  going  to  the  enemy,  there  must  be  an  acquittal :  un- 
less from  the  aforesaid  evidence  the  property  shall  appear 
so  doubtful,  that  it  is  "reasonable  to  go  into  the  further 
proof  thereof, 

A  claim  of  ships  or  goods  must  be  supported  b}-  tlie  oath^ 
of  somebody,  at  least  as  to  belief. 

^The  law  of  nations  requires  good  faith;  therefore  every 
ship  must  be  provided  with  complete  and  genuine  papei's, 
and  the  master  at  least  should  be  privy  to  the  truth  of  the 
transaction. 
'  To  enforce  these  rules,  if  there  be  false  or  colourable  pa- 
pers, if  any  papers  be  thrown  overboard,  if  the  master  and ' 


HA 


320  APPENDIX. 


4 


officers  examined  in  prKparatorio  grossly  prevaricate,  if 
proper  ship's  papers  are  not  on  board,  or  if  the  master  and 
crew  cannot  say  whether  the  ship  or  cargo  be  the  property 
of  a  friend  or  enemy,  the  law  of  nations  allows,  according 
to  the  different  degrees  of  misbehaviour  or  suspicion  aris- 
ing from  the  fault  of  the  ship  taken,  and  other  Scircumstan- 
ces  of  the  case,  costs  to  be  paid,  or  not  to  be  received,  by 
the  claimant  in  case  of  acquittal  and  restitution.  On  the 
other  hand,  if  a  seizure  is  made  without  probable  cause, 
the  captor  is  adjudged  to  pay  costs  and  damages;  for  which 
purpose  all  privateers  ai^e  obliged  to  give  security  for  theii 
good  behaviour;  and  this  is  referred  to,  and  expressly 
stipulated  by,  many  treaties.* 

Thovigh,  from  the  ship's  papers,  and  the  preparatory  ex- 
aminations, the  property  do  not  sufficiently  appear  to  be 
neutral,  the  claimant  is  often  indulged  with  time  to  send 
over  affidavits,  to  supply  that  defect;  if  he  will  not  shew 
the  property  by  sufficient  affidavits  to  be  neutral,  it  is 
presumed  to  belong  to  the  enemy,  ^here  the  property 
appears  from  evidence  not  on  board  the  ship,  the  captor  is 
justified  in  bringing  her  in,  and  excused  paying  costs,  be- 
cause he  is  not  in  fault ;  oi-,  according  to  the  circumstances 
of  the  case,  may  be  justly  entitled  to  receive  his  costs. 

If  the  sentence  of  the  court  of  admiralty  is  thought  t@ 
be  erroneous,  there  is  in  every  maritime  country  a  superior 
court  of  review,  consisting  of  the  most  considerable  per- 
sons, to  which  the  parties,  who  think  themselves  aggriev- 
ed, may  appeal;  and  this  superior  court  judges  by  the  same 
rule  which  governs  the  court  of  admiralty,  viz.  the  law  of 


•  Treaty  between  Eng'lamJ  andlloHaiul,  17  Feb.  1668.  Art.  13 — Trea.- 
ty  1  Dec.  1674.  Art.  10 — Treaty  between  England  and  France  at  St. 
Geimains,  24th  of  Feb.  1677.  Art.  10. — Treaty  of  Commerce  at  Ityswick, 
Sept.  20,  1697,  bctv.ccn  France  and  Holland,  Art.  30. — ^Treaty  of  Con;- 
niercc  at  Utreclit,  31  March,  17iC,  between  Great  Uritain  and  France, 
Art.  29; 


t* 


W^^ 


APPENBIX.  rrZl 

nauoiio,  and  the  treaties  subsisting  with  that  neutral  power 
whose  subject  is  a  party  before  them. 

If  no  appeal  is  offered,  it  is  an  acknowlrdgment  of  the 
justice  of  the  sentence  by  the  parties  themselves,  and  con- 
clusive. 

This  manner  of  trial  and  adjudication  is  supported,  allu- 
ded to,  and  enforced  by  many  treaties.* 

In  this  method  all  captures  at  sea  were  tried,  during  the 
last  war,  by  Great  Britain,  France,  and  Spain,  and  submit- 
ted to  by  the  neutral  powers.  In  this  method,  b)^  courts  of 
s:d'miralty  acting  according  to  the  law  of  nations  and  par- 
ticular treaties,  all  captures  at  sea  have  immemorially  been 
judged  of  in  ev^ery  country  of  Europe.  Any  other  method 
of  trial  would  be  manifestly  unjust,  absurd,  and  impratica- 
ble. 


*  *  As  appears  With  respect  to  courts  of  admiralty  adjudging  the  prizes 
taken  by  those  of  their  own  nation,  and  with  respect  to  the  witnesses  to 
be  examined  in  those  cases,  from  the  following  treaties  t — Treaty  be- 
tween England  and  Holland,  17  Feb.  1668.  Art  9  and  14.-^Treaty  1  Dec. 
1674.  Art.  11.— Treaty  29th  of  April,  1689.  Art.  12,  IS.—Treaty  between 
England  and  Spain,  23  May,  1667.  Art.  23. — Treaty  of  Commerce  at 
Ryswick,  20  Sept.  1697,  between  France  and  Holland,  Art.  26  and  31. — 
Treaty  between  England  and  France,  3  Nov.  1655.  Art.  17  and  18 — 
Treaty  of  Commerce  between  England  and  France  at  St,  Germain's,  29 
March,  1632.  Art.  5  and  6.— Treaty  at  St.  Germain's,  24  Feb.  1677.  Art. 
S'. — Treaty  of  Commerce  between  Great  Britain  and  France,  at  Utrecht, 
SI  March,  171S.  Art.  26  and  30. — Treaty  between  England  and  Denmark, 
29  Nov.  1669.  Art.  23  and  34. — Hemeccius,  who  was  privy  counsellor  to 
the  king  of  Prussia,  and  held  in  the  greatest  esteem,  in  his  Treatise  de 
J\'avibus  ob  vecturam  vetitarum  merciiim  commissis,  cap.  2.  sect.  17  and  IS, 
speaks  of  this  method  of  trial. 

With  respect  to  appeals  or  i-eviews, — from  treaty  between  England  and 
Holland,  1  Dec.  1674.  Art  12,  as  it  is  explained  by  Article  2-  of  the  Trea- 
ty at  Westminster,  6  Feb.  1715-16. — Treaty  between  England  and 
France,  at  St.  Germain's,  24  Feb.  1677.  Art.  12 — ^Treaty  of  Commerce  at 
Ryswick,  20,  Sept.  1697,  between  Fraace  and  Holland,  Art.  to. — Treaty  of 
Commerce  at  Utrecht.  61  March,  1713,  between  Great  Britain  and  France, 
Art.  31  and  32,  and  othc/  Treaties. 


3-22  APPENDIX. 

Though  the  law  of  nations  be  the  general  rule,  yet  it  may, 
by  mutual  agreement  between  two  powers,  be  varied  or  de- 
parted from ;  and  where  there  is  an  alteration  or  exception 
introduced  by  particular  treaties,  that  is  the  law  between 
the  parties  to  the  treaty ;  and  the  law  of  nations  only  gov- 
erns so  far  as  is  not  derogated  from  by  the  treaty. 

Thus  by  the  law  of  nations,  where  two  powers  are  at  war, 
all  ships  are  liable  to  be  stopped  and  examined  to  whomth^ 
belong,  and  whether  they  are  carrying  contraband  goods  to 
the  enemy  ;  but  particular  treaties  have  enjoined  a  less  de- 
gree of  search,  on  the  faith  of  producing  solemn  passports 
and  formal  evidences  of  property  duly  attested. 

Particular  treaties  too  have  inverted  the  rule  of  the  law 
of  nations,  and  by  agreement  declared  the  goods  of  a  friend 
on  board  the  ship  of  an  enemy  to  be  prize,  and  the  goods 
of  an  enemy  on  board  the  ship  of  a  friend  to  be  free,  as  ap- 
pears from  the  treaties  already  mentioned,  and  many 
others.* 

So  likewise,  by  particular  treaties,  some  goods  reputed 
contraband  by  the  law  of  nations  are  declared  to  be  free.l 

If  a  subject  of  the  king  of  Prussia  is  injured  by,  or  has 
a  demand  upon  any  person  here,  he  ought  to  apply  to  your 
majesty's  courts  of  justice,  which  are  equally  open  and  in- 
different to  foreigner  or  native ;  so,  vice  versa,  if  a  sub- 
ject here  is  wronged  by  a  person  living  in  the  dominions  of 
his  Prussian  majesty,  he  ought  to  apply  for  redress  in  the 
king  of  Prussia's  courts  of  justice. 

If  the  matter  of  complaint  be  a  capture  at  sea  during 
war,  and  the  question  relative  to  prize,  he  ought  to  apply 
to  the  judicatures  established  to  try  these  questions. 

The  law  of  nations,  founded  upon  justice,  equity,  con- 
venience, and  the  reason  of  the  thing,  and  confu-mcd  by  long 
usage,  does  not  allow  of  reprisals,  except  in  case  of  violent 

'*  Particularly  by  llic  aforesaid  Treaty  between  England  and  Holland,  I 
D€c.  1674,  and  the  Treaty  of  Utrecht  hgtwccn  Great  Kritaia  and  rrancc 


•#^: 


APPENDIX.  323 

injuries  directed  or  supported  by  the  state,  and  justice  abso- 
lutely denied  in  re  minime  dubig,  by  all  the  tribunals,  and 
afterwards  by  the  prince.* 

Where  the  judges  are  left  free,  and  give  sentence  accord- 
ing to  their  conscience,  though  it  should  be  erroneous,  that 
"liquid  be  no  ground  for  reprisals.  Upon  doubtful  ques- 
tions different  men  think  and  judge  dift'erently  ;  and  all  a 
friend  can  desire  is,  that  justice  should  be  impartially  ad- 
ministered to  him,  as  it  is  to  the  subjects  of  that  prince  in 
whose  courts  the  matter  is  tried. 
Secondly  as  to  the  Fact. 

We  have  subjoined  hereto  two  lists  tallying  With  those 
marked  A.  and  B.  which  were  delivered  to  his  grace  the 
duke  of  Newcastle  by  Mons.  Michell,  with  the  said  me- 
morial, the  23d  of  N.;vembcr  last;  and  also  printed  at  the 
end  of  the  said  Exposition  des  Motifs^  &c.  from  whence  it 
will  appear,  that  as  to  the  list  A.  which  contains  1 8  ships 
and  their  cargoes. 

Four,  if  ever  taken,  were  restored  by  the  captors  them- 
selves, to  the  satisfaction  of  the  Prussians,  whenever  have 
complained  in  any  court  of  justice  here. 

One  was  restored  by  sentence,  with  full  costs  and  dama- 
ges, which  were  liquidated  at  2801/.  12s  Id.  sterling. 

Three  ships  were  restored  by  sentence,  with  freight,  for 
such  of  the  goods  as  manifestly  belonged  to  the  enemy,  and 
were  condemned. 

Four  ships  were  restored  by  sentence,  but  the  cargoes, 
or  part  of  them,  condemned  as  prize  or  contraband,  and  are 

•  Grotius  cle  Jure  Belli  ac  Pacts,  lib.  3.  cap.  2.  sect.  4,  5. 

Treaty  between  England  and  Holland,  31  July,  1667,  Art.  31.  Repri- 
sals shall  not  be  granted,  till  justice  has  been  demanded  according  to  the 
ordinary  course  of  law. 

Treaty  of  Commerce  at  Ryswlck,  20  Sept.  1697",  between  France  and 
Holland,  Art.  4,  Reprisals  shall  not  be  granted  but  cu  mr.nifest  denial  of 
justice. 


>24  AFPEKDLX* 


■<fc 


»ot  now  alleged  in  the  lists  A.  or  B.  to  have  been  Prus" 
sian  property. 

Five  ships  and  cargoes  were  restored  by  sentence,  but- 
the  claiment  subjected  to  pay  costs,  because,  from  the  ship- 
papers  and  pi-eparatory  examinations,  there  was  gromid  to 
have  condemned,  and  the  restitution  was  decreed  merelyjgfe 
the  faith  of  affidavits  afterwards  allowed.  '^^ 

One  ship  and  cargo  was  restored  by  sentence  upon  an 
appeal,  but  from  the  circumstances  of  the  capture,  without 
costs  on  either  side. 

There  need  no  observations  upon  this  list.  As  to  the 
eight  cases  first  above  mentioned,  there  cannot  be  the  col- 
our of  complaint. 

As  to  the  four  next,  the  goods  must  be  admitted  to  have 
been  rightly  condemned,  either  as  enemy's  property  or  con- 
traband, for  they  are  not  now  mentioned  in  the  lists  A. 
or  B.  ;J#' 

If  contraband,  the  ship  could  have  rii^Tther  freight  nor 
costs,  and  the  sentences  were  favourable  in  restoring  the 
ships,  upon  presumption  that  the  owners  of  the  ships  were 
not  acquainted  with  the  nature  of  the  cargo  or  the  owners 
thereof.  If  enemy's  property,  the  ships  could  not  be  entitled 
to  freight,  because  the  bills  of  lading  were  falsc^  and  pur- 
ported the  property  to  belong  to  Prussians. 

The  ships  could  not  be  entitled  to  costs,  because  the 
cargoes,  or  part  of  them,  being  lawful  prize,  the  ships  were 
rightly  brought  in. 
,  As  the  six  remaining  ships  and  cargoes  were  restored, 
the  only  cpiestion  must  be  upon  paying  or  not  receiving 
costs,  which  depends  upon  the  circumstances  of  the  cap- 
ture, the  fairness  of  the  ship's  documents,  and  conduct  of 
her  crew;  and  neither  the  Prussian  commissioners,  the 
said  memorial,  or  said  Exposition  des  Motifs^  &c.  allege  a 
single  reason  wh}',  upon  the  particular  circumstances  of 
these  cascs,,tlie  sentences  were  wrong. 
As  to  the  list  B. 


'% 


Ai^FtSDis.  32.5 


Eveiy  ship,  on  board  which  the  subjects  of  Prussia 
chiim  to  have  had  property,  was  bound  to  or  from  a  port  of 
the  enemy  ;  and  many  of  ihem  appeared  to  be,  in  part,  la- 
den with  the  goods  of  the  enemy,  either  under  their  own 
or  fictitious  names* 

In  every  instance  where  it  is  suggested  that  any  p£«:t  of 
th^eargo  belonged  to  a  Prussian  subject,  though  his  prop- 
erty did  not  appear  from  the  ship's  papers,  or  preparatory 
examinations,  which  it  ought  to  have  done,  sufficient  time 
M'as  indulged  to  that  Prussian  subject  to  make  an  affidavit 
that  the  property  was  bond,  fide  in  him  ;  and  tKe  affidavit  of 
the  party  himself  has  been  received  as  proof  of  the  property 
of  the  Prussian,  so  as  to  entitle  him  to  restitution. 

Where  the  party  will  not  swear  at  all,  or  swears  evasive- 
ly, it  is  plain  he  only  lends  his  name  to  cover  the  enemy's 
property,  as  often  came  out  to  be  the  case  beyond  the  possi- 
bility of  doubt. 

It  appears  by  a  letter  29th  of  May  and  9th  of  June,  1  /4?'<, 
from  Mons.  Andri^  to  his  Prussian  Majesty,  exhibited  in 
a  cause,  and  certified  to  be  a  true  extract  by  Mons.  Mi- 
chel], under  his  hand,  that  this  colourable  manner  of  screen- 
ing the  goods  of  the  enemy  was  stated  in  the  following 
words  : 

*'  Your  majesty's  subjects  ought  not  to  load  on  board 
neutral  ships  any  goods  really  belonging  to  the  enemies  of 
England,  but  to  load  them  for  their  own  account,  whereby 
they  may  safely  send  them  to  any  country  they  shall  think 
proper,  without..any  risk.  Then,  if  privateers  commit  any 
damage  to  the  ships  belonging  to  your  majesty's  subjects, 
you  may  depend  on  full  justice  being  done  here,  as  in  all 
the  like  cases,  hatli  been  done." 

List  B.  contains  thirty-three  cases. 

Two  of-  them  never  came  before  a  court  of  justice  In 
England,  but  (if  taken)  were  restored  by  the  captors  them* 
".elves,  to  the  entire  satisfaction  of  the  owners. 

In  sixteen  of  them  the  goods  claimed  by  the  Prussian 

43 


J26  APPENDIX. 


•«^ 


subjects  appear  to  have  been  actually  restored,  by  sentehce, 
to  the  masters  of  ships  in  which  they  were  laden ;  and  by 
the  customs  of  the  sea  the  master  is  in  the  place  of  the  la- 
der,  and  answerable  to  him. 

In  fourteen  of  the  cases  the  Prussian  property  was  not  veri- 
fied by  the  ship's  papers,  or  preparatory  examinations,  or 
claimant's  own  affidavit,  which  he  was  allowed  to  makel 
'j^%And  the  other  cause,  with  respect  to  part  of  the  goods, 
^  still  depending,  neither  party  having  moved  for  judg- 
ment.*    And  so   conscious   were  the   claimants  that  the 
court  of  admiralty  did  right,  there    is  not  an  appeal,  in  a 
single  instance,  in  list  B.;  and  but  one  in  list  A. 
Thirdly,  to  apply  the  law  to  the  Fact, 

The  sixth  question  in  the  said  Exposition  des  Motifs^  &c. 
states  the  right  of  reprisals  to  be,  **  puisqiCon  leura  si  Icrtg 
tefns  derive  toute  la  justice^  qu'ils  ctoitntfondes  de  demander^"* 

The  said  memorial  founds  the  justice  and  propriety  of 
his  Prussian  Majesty's  having  recourse  to  reprisals,  be- 
cause his  subjects,  ^'"ni^ont  pu  ohtenir  jusqiC  a  present  aucun^ 
justice  des  tribunaux  Anglois  qiCils  ont  reclames  ou  dugouv- 
ernement  auquel  ils  ont  parte  les  plalntesy  ^  And  in  another 
part  of  the  memorial  it  is  put,  "  apres  avoir  en  vain  de- 
7nande  des  reparations  deceiix  qui  seuls  pouvoientles  fair e^"* 

The  contrary  of  all  which  is  manifested  from  the  above 
state  and  lists  hereto  annexed. 

In  six  of  the  cases  specified,  if  such  captures  ever  were 
made,  the  Prussian  subjects  were  so  well  satified  with  the 
restitution  made  by  the  captors,  that  they  never  complained 
in  any  court  whatsoever  of  this  kingdom. 

The  rest  were  judged  of  by  a  court  of  admiralty,  the  on- 
ly proper  court  to  decide  of  captures  at  sea,  both  with  res- 
pect to  the  restitution  and  the  damages  and  costs ;  acting 
according  to  the  law  of  nations,  the  only  proper  rule  to  de- 

•  The  Prussian  lias  since  applied  for  judgment  »n  the  29th  of  January, 
and  obiaijie4yr<"*^itutioK. 


"f. 


# 


"  ■\,'  APPENDIX.  3-27 

■Jf 

cide  by;  and  justice  has  been  done  by  the  court  of  admiralty 
so  impai-tially,  that  all  the  ships  alleged  in  list  A.  to  have 
been  Prussian  were  restored,  and  all  the  cargoes  mentioned 
in  either  list  A.  or  B.  were  restored,  excepting  fifteen,  one  of 
which  is  still  undetermined. 

And,  in  all  the  cases  in  both  lists,  justice  was  done  so  en- 
tirely to  the  conviction  of  the  private  conscience  of  the 
Prussian  claimants,  that  they  have  acquiesced  under  the 
sentences  without  appealing,  except  in  one  single  instance, 
where  the  part  of  the  sentence  complained  of  was  reversed; 

Though  the  Prussian  claimants  must  know  that,  by  the 
law  of  nations,  they  ought  not  to  complain  to  their  own  sov- 
ereign till  injustice  in  re  ininime  dubid  was  finally  done 
them,  past  redress  ;  and  though  they  must  know  that  rule 
of  the  law  of  nations  held  more  strongly  upon  this  occasion, 
because  the  property  of  prize  was  given  to  the  captors,  and 
ought  therefore  to  be  litigated  with  them.  The  Prussian 
who,  by  his  own  acquiescence,  submits  to  the  captors  having 
the  prize,  cannot  afterwards  with  justice  make  a  demand  up- 
on the  state.  If  the  sentence  was  wrong,  it  is  owing  to  the 
fault  of  the  Prussian  that  it  was  not  redressed.  But  it  is 
not  attempted  to  be  shewn,  even  now,  that  these  sentences 
were  unjust  in  any  part  of  them,  according  to  the  evidence 
and  circumstances  appearing  before  the  court  of  admiralty ; 
and  that  is  the  criterion. 

For  as  to  the  Prussian  commission  to  examine  these  ca- 
scs,(fA,''/;«;-^c',uponnew  suggestions,  it  never  was  attempted  in 
any  country  of  the  world  before  ;  prize  or  not  prize,  must 
be  determined  by  courts  of  admiralty  belonging  to  the  pow- 
er whose  subjects  make  the  capture.  Every  foreign  prince 
in  amity  has  a  right  to  demand  that  justice  shall  be  done 
his  subjects  in  these  courts,  according  to  the  law  of  nations, 
or  particular  treaties,  where  any  are  subsisting.  If  hi  re 
mhihn^  di^^'these  courts  proceed  upon  foimdations  direct^ 
ly  opposite  to  the  law  of  nations,  or  subsisring  treaties,  the 
neutral  state  has  a  right  to  complain  of  such  determination. 


328  APPENDIX. 

Bat  there  never  was,  nor  never  can  be,  any  other  equita.- 
ble  method  of  trial.  All  the  maritime  nations  of  Europe 
have,  when  at  war,  from  the  earliest  times,  uniformly  pro- 
ceeded in  this  way,  with  the  approbation  of  all  the  powers 
^t  peace.  Nay,  the  persons  acting  under  this  extraordi- 
nary and  unheard-of  commission  from  his  Prussian  ma- 
jesty, do  not  pretend  to  say,  that  in  the  four  cases  of  gcods 
condemned  here,  for  which  satisfaction  is  deraanded  m  list 
A.  the  property  really  belonged  to, Prussian  subjects;  but 
they  profess  to  proceed  upon  this  principle,  evidently  false, 
that  though  these  cargoes  belonged  to  the  enemy,  yet,_^be- 
ing  on  board  any  neutral  ships,  they  were  not  liable  to  inqui- 
ry, seizure,  or  condemnation. 

Fourthly,  from  the  questions^  rules,  reasonings^  and  mat- 
ters alleged  in  the  said  memorial,  sentences  of  the  Prus- 
sian commissioners,  and  Exposition  dcs  Motifs^  &c.  the 
following  propositions  may  be  drawn  as  carrying  the  ap- 
pearance of  objections  to  what  has  been  above  laid 
clown  : 

FIRST   PROPOSITION. 

♦•  That  by  the  law  of  nations  the  goods  of  an  enemy  can- 
not be  taken  on  board  the  ship  of  a  friend ;  and  this  the 
Prussian  commissioners  lay  down  as  the  basis  of  all  they 
have  pretended  to  do." 


Answer.  The  contrary  is  top  clear  to  admit  of  being 
disputed.  It  may  be  proved  by  the  authorities  of  every  wri- 
ter of  the  law  of  nations  ;  some  of  different  countries  are  re- 
ferred to.*     It   may  be  proved  by  the  constant  practice^, 

•.  n  Comolato  del  Mare,  cap.  273,  expressly  says,  "  The  enemy's  goods, 
found  on  board  a  friend's  ship,  shall  be  confiscutcd."  And  this  is  a  bqok 
of  great  4uUiority. 


ft 


ATPliNBIX.  3:^9 

ancient  and  modern  ;  but  the  general  rule  cannot  be  more 
strongly  proved  than  by  the  exception  which  particular 
treaties  have  made  to  it.*  ' 

SECOND    niOPOSITIOK. 

*'  It  is  alleged  that  Lord  Carteret,  in  1744,  by  two  ver- 
bal declarations,  gave  assurances  in  your  majesty's  name 
that  nothing  on  board  a  Prussian  ship  should  be  seized, 
except  contraband  ;  consequently,  that  all  effects  not  con- 
traband, belonging  to  the  enemy,  should  be  free ;  and  that 
these  assurances  were  afterwards  confirmed  in  writing  by 
Lord  Chesterfield,  the  5th  of  January,  1747." 

Answer.  The  fact  makes  this  question  not  very  mate- 
i'islI,  because  there  are  but  four  instances  in  lists  A.  or  B. 
where  any  goods  on  board  a  Prussian  ship  have  been  con- 

Grotius  del  Jure  Belli  ac  Pacts,  lib.  iii.  cap.  1,  section  5,  numero  4,  in 
the  notes,  cites.this  passage,  in  the  II  Consolato,  and  in  his  notes,  lib.  iiL 
cap.  6.  sect.  6. 

Loccenuts  de  Jure  Jl far itimo,  lib.  ii.  cap.  4,  sect.  12. 

Voet  de  Jure  JiTilitari,  cap-  5,  nu.  21. 

I/eineccius,  the  learned  Prussian  before  quoted,  de  JVavibits  oh  VectU' 
ram  vctitarum  JMhrcium  commissis,  cap.  2.  sect.  9.  is  clear  and  explicit  up- 
on this  point.  _  .   "f  " 

Bynkershoeck  Qiuestiones  Juris  Publici,  lib.  i.  cap.  14,  per  totum. 

Zsuch  (an  Englishman)  in  his  book  de  Judicio  inter  Gentes,  pars  2.  sect. 
6,  numero  6. 

Treaty  between  Great  Britain  and  Sweden,  23  Oct.  1661.  Art.  12,  and 
13  :  Treaty  between  Great  Britain  and  Denmark,  19  Nov.  1669.  Art.  2 ; 
and  the  passport  or  certificate,  settled  by  that  treaty,  are  material  ^sto 
this  point. 

*  Treaty  between  France  and  England,  24  Feb.  1677.  Art.  8. 
Treaty  of  Utrecht  between  France  and  England,  1713.  Art.  17. 
Treaty  between  England  and  Holland,  17  Feb.  1668.  Art.  10. 
Treaty  between  England  and  Holland,  1  Dec.  1674  Art.  8. 
Treaty  between  England  and  Portugal,  10  July,  1554.  Art.  23. 
Treaty  between  France  and  the  States  General  at  Utrecht,  11  ApriJ, 
1715.    Ati.2Q, 


330  APPENDIX. 

demned;  and  no  satisfaction  is  pretended  to  be  demanded 
for  any  of  those  four  cargoes  in  lists  A.  and  B.  However, 
it  may  be  proper  to  shew  how  gi-oundless  this  pretence  is. 
Taking  the  words  alleged  to  have  been  said  by  Lord 
Carteret  as  they  are  stated,  they  do  not  warrant  the  infe- 
rences endeavoured  to  be  drawn  from  them.  They  import 
no  new  stipulation  different  from  the  law  of  nations,  but 
expressly  profess  to  treat  the  Prussians  upon  the  same 
foot  with  the  subjects  of  other  neutral  powers  under  the 
like  circumstances  ;  i.  e.  with  whom  there  was  no  particu- 
lar treaty.  For  the  reference  to  neutral  powers  cannot  be 
understood  to  communicate  the  terms  of  any  particular 
treaty.  It  is  not  so  said.  The  treaties  with  Holland, 
Sweden,  Russia,  Portugal,  Denmark,  &c.  all  differ.  Who 
can  say  which  was  communicated  ?  There  would  be  no  re- 
ciprocity :  the  King  of  Prussia  does  not  agree  to  be  bound 
by  the  clauses  to  which  other  powers  have,  by  their  re- 
spective treaties,  agreed.  No  Prussian  goods  on  boayd 
an  enemy's  ship  have  ever  been  condemned  here,  and  yet 
they  ought,  if  the  treaties  with  Holland  were  to  be  the 
rule  between  Great  Britain  and  Prussia ;  nay,  if  these 
treaties  were  to  be  the  rule,  all  now  contended  for,  on  the 
part  of  Prussia,  is  clearly  wrong  ;  because,  by  treaty,  the . 
Dutch,  in  the  lafvt-resnrt,  are  to  apply  to  the  court  of  appeal 
here. 

Treaty  of  AUiance  behccen  Great  Britain  and  Holland,  at 
Westminster,  the  6th  of  Feb.  1715-16,  Article  II. 

"  Whereas  some  disputes  have  happened  touching  the 
explanation  of  the  12th  article  of  the  treaty  marine  in  1074, 
it  is  agreed  and  concluded  for  deciding  any  difficulty  upon 
that  matter,  to  declare  by  these  presents,  that  by  the  pro- 
visions mentioned  in  the  said  article,  are  meant  those 
which  are  received  by  custom  in  Great  Britain  and  the 
United  Provinces,  and  always  have  been  received,  which 
have  been  granted,  and  always  ^re  granted,  in  the  like 


case,  to  the  inhabitants  of  the  said  countries,  and  to  eveiy 
forelgn  nation."  ;^|Spb 

Lord  Carteret  is  said  twice  to  have  refused,  in  which 
Monsieur  Andrie  acquiesces,  to  give  any  thing  in  writing, 
as  not  usual  in  England. 

Supposing  the  conversations  to  mean  no  more  than  a  de- 
claration of  course  that  justice  should  be  done  to  the  Prus- 
sians in  like  mann^  as  to  any  other  neutral  power  with 
^hom  there  was  no  treaty,  there  was  no  occasion  for  in- 
struments in  writing  ;  because  in  England  the  crown  never 
interferes  with  the  course  of  justice.  No  order  or  intima- 
tion is  ever  given  to  any  judge.  Lord  Carteret  therefore 
knew  that  it  was  the  duty  of  the  court  of  admiralty  to  do 
equal  justice,  and  that  they  would,  of  themselves,  do  what 
he  said  to  Monsieur  Andri^:. 

Had  it  been  intended,  by  agreement,  to  introduce  be- 
tween Prussia  and  England  a  variation  in  any  particular 
from  the  law  of  nations,  and  consequently  a  new  rule  for 
the  court  of  admiralty  to  decide  by,  it  could  only  be  done 
by  a  solemn  treaty,  in  writing,  properly  authorized  and 
authenticated.  The  memory  of  it  could  not  otherwise  be 
preserved ;  the  parties  interested  and  the  courts  of  admi- 
ralty could  not  otherwise  take  notice  of  it. 

But  Lord  Chesterfield's  confirmation,  in  a  letter  of  lac;    ^^ 
oth  of  January,   1747,  being  relied  upon,  the  books  of  the 
secretary's  office  have   been  searched,   and  the   letter   to 
Monsieur  Michell  is  found,  which  is  verbatim  as  follows  : 

A  Whitehall,  le  5  Janv.  17-17-8,;        '*■ 
"  ^Monsieur, 
"  Ayant  eu  Vhonneia-  de  rcccvo/r  les  ordres  du  roy  sur  ■:■■• 
qui  a  forme  le  sujet  du  mcmoire  que  rotis  mavez  rends  du  8 
dc  ce  mois,  N.-S.     Je  n'ai  pas  voulu  tardcr  a  (•'•■'•  '"'"we;-, 
que sa  majeste,  pourne  ricn  omettrc  par  on  elL  ■.;/?■- 

ner  ses  attentions  eniiers  lerorj  voire  maitrc.       I'-'fi  /.■  i  ."    '  ■ 
Jiculte  de  declarer,  qu'ellc  n  a  jamais  cj.   '.' ftieniion^  '■:    ■:; 


m 


332  APPENDIX"* 

r aura  jamais,  dedomfcr  h  7noi>ich-e  cmpechement  a  lancsoi-^' 
^ration  dcs  mjets  PnissicnSi  tarit  qiHls  auront  soin  d'exercer 
leur  qommerce  d'-une  niartkre  licite,  et  conformtment  a  Vctn- 
fiien  usage  etahli  et  reconnu  parmi  Ics  puissances  neutres. 

"  Que  sa  majeste  Prussienne  nc  pent  pas  ignorer,  quil  y  a 
des  traites  de  commerce  qui  snhsistent  actuetlement  cntre  Id 
Grande  Bretagne  et  certaines  etats  neutres,  et  quau  moyen 
des  c!/i;agemens  foriJicUement  contractes  de  part  et  d'autre 
par  CCS  nicmes  traites,  tout  ce  qui  rcgafde  la  maniere  d'exer^ 
ccr  Icur  com.ineree  reciproquemcnt,  a  ete  Jinahment  constats 
it  r eerie. 

*'  Qu^en  mcme  ferns  il  ne  paroit  point  qu'aucun.  traite  de  la 
'jialure  susdite  existe  a  present,  ou  a  jamais  existe,  entre  sec 
majeste  et  le  roy  de  Prusse  ;  mais  que  j)ourtant  cela  na  ja- 
viais  empeche  que  Ics  sujets  Prussiens  nayent  ite  favorises 
par  r Angleterre,-par  report  d  leur  navigation,  cmtaut  que  les 
cmtres  nations  neutres :  et  cela  etant,  sa  majeste  ne  presup-^ 
pose  pas,  qice  Vidce  du  roy  votre  maitre  seroit  d'eotiger  cVelle 
des  distinctions,  encore  moins  des  preferences y  en  Jcvoeur  dc 
ses  sujets  a  cet  egard. 

*'  Que  de  plus  sa  majesty  Prussienne  est  trop  eclairec  pour' 
ne  pas  connoitre,  qiiil  y  a  des  loix  Jixes  et  etahlies  dans  ce 
ghuvernement,  dorit  on  ne  pent  nullement  secarter-,  et  que 
s'ilarrimit  que  la  marine  Angloise  s'avisdt  de  faire  la  moin- 
dre  injustice  a^gp  sujets  commercans  du  roy  votre  maitre,  il  y 
il  un  tribunal  ici,  savoir,  la  haute  cour  de  Vamiraute,  a  la-- 
quelle  ils  se  trouoent  en  droit  de  s'adresser  et  de  porter  leurs 
plaintes ;  assures  d' avarice,  en  pareil  cas,  qtion  leur  y  re: 
(Ira  bonne  justice ;  les  procedds  juridiques  dc  ladite  con 
t^tant  et  ayant  ite  de  tout  terns  hors  d\itteinte  et  irreproch-' 
nbles;  temoin,  nombre,  d\xcmpies,  oil  des  vaisseaux  neutres, 
pris  illic/temeiU,  ont  etc  restituds  avecfraix  et  dununages  au.n 
proprietaires. 

"  Voicice  que  h:  my  nia  ordon?ie  de  pons  repondre  sur  le 
contrnu  de  vgtre  dit  mcmoirc ;  et  sa  m'ajeste  ne  sauroit  que 
sc  JUitter,  ([iHcu  consequence  de  ee  que  jc  viens  d'avancrr ;  H 


APrExDix.  333 

ne  ifstera  plus  rien  a  desirer  au  roy  voire  maitre  relative^ 
merit  a  Vobjet  dont  il  est  question ;  ct  le  roy  s'en  croit  d^au" 
tant  plus  assure,  quil  est  persuade  que  sa  majeste  Prussienne 
■tie  voudroit  rien  demander  que  ne  Jut  equitahle. 

"  Je  suis,  avec  lien  de  la  consideration^ 
"  Monsieur, 

*'  Voire  trts  humhle  et  tres 
"  Oheissant  seririteur, 

"  chesterfield:' 

There  need  no  observations ;  it  is  explicit,  and  in  ex- 
press terms  puts  Prussia  upon  the  foot  of  other  neutral 
powers  with  whom  there  was  no  treaty,  and  points  out  the 
proper  way  of  applying  for  redress. 

The  verbal  declarations  made  by  Lord  Carteret  in  1T4>4, 
v/hich  are  said  to  have  been  confirmed  by  this  letter  from 
Lord  Chesterfield,  cannot  have  meant  more  than  the  letter 
expresses. 

And  it  is  manifest  by  the  above  extract  from  Monsieur 
Andrie's  letter  to  his  Prussian  majesty,  that  in  May  1747", 
Monsieur  Andrie  himself  understood  that  goods  of  the  en- 
emy taken  on  board  neutral  ships  ought  to  be  condemned 
as  prize. 

It  is  evident  from  authentic  acts,  that  the  subjects  of 
Prussia  never  understood  that  any  new  right  was  commu- 
nicated to  them. 

Before  the  year  1746  the  Prussians  do  not  appear  to 
have  openly  engaged  in  covering  the  enemy's  property. 

The  men  of  war  and  privateers  could  not  abstain  from 
captures  in  consequence  of  Lord  Carteret's  verbal  assu- 
ranees  in  1744,  because  they  never  were  nor  could  be 
known  ;  and  there  was  no  occasion  to  notify  them,  suppo- 
sing them  only  to  promise  impartial  justice.  For  all  ships 
of  war  were  bound  to  act,  and  courts  of  admiralty  to  judge, 
according  to  the  law  of  nations  and  treaties » 


i^ 


S34  APPENDIX* 

Till  1/46  the  Prussian  documents  were,  a  certificate  of 
the  admiralty,  upon  the  oath  of  the  builder,  that  the  ship 
was  Prussian  built  j  and  a  certificate  of  the  admiralty, 
upon  the  oath  of  the  owner,  that  the  ship  was  Prussian 
property. 

From  1746  the  Prussians  engaged  in  the  gainful  prac- 
tice of  covering  the  enemy^s  goods,  but  were  at  a  loss  in 
what  shape  and  upon  what  pretences  it  might  best  be  done. 

On  board  the  ship  the  Trois  Soeurs  was  found  a  pass 
bearing  date  at  Stettin  the  6th  of  October  1746,  under  the 
royal  seal  of  the  Prussian  regency  of  Pomerania,  &c.  alleg- 
ing the  cargo,  which  was  ship  timber,  bound  for  Port 
L'Orient,  to  be  Prusbian  property,  and  in  cons'^quence 
thereof,  claiming  freedom  of  the  ship. 

Claiming  freedom  to  the  ship  from  the  prcper^y  of  the 
cargo  being  quite  new,  the  proposition  was  afterwards  re- 
versed- And  on  board  a  ship  called  the  Junreaux,  was 
found  a  pass  bearing  date  at  Stettin  the  27th  of  June,  1747, 
under  the  royal  seal,  &c.  alleging  the  ship  to  be  Prussian 
property,  and,  in  consequence  thereof,  claiming  freedom  to 
the  goods. 

But  this  pass  was  not  solely  relied  on,  for  there  was 
also  found  on  board  the  same  ship  another  pass,  bearing 
date  at  Stettin  the  lAth  of  June,  1747,  under  the  royal 
seal,  &c.  alleging  the  cargo  to  be  Prussian  property. 

And  it  is  remarkable  that  the  oaths  upon  which  these 
passes  were  granted,  appeared  manifestly  to  be  false ;  and 
neither  of  the  cargoes  to  which  they  relate  are  now  so 
much  as  aUcged  to  have  been  Prussian  property  in  said 
list  A.  or  B. 

It  being  mentioned  in  the  siiid  Exposition  des  Motifs^hc. 
that  Mons.  Mlchell,  in  September,  1747,  made  verbal  re- 
presentations to  Lord  Chesterfield  in  respect  to  the  cargo 
taken  on  board  the  said  ship  called  the  Trois  Soeurs,  which 
was  claimed  as  Prussian  property,  and  no  mention  being 
made  in  the  lifits  A.  and  B.  of  the  said  cargo,  wc  directed 


APPENDIX.  335 

the  proceedings  in  that  cause  to  be  laid  before  us ;  where 
it  appears  in  the  fullest  and  clearest  manner,  from  the  ship- 
papers  and  depositions,  that  the  cargo  was  timber,  laden 
on  the  account  and  at  the  risk  of  Frenchmen,  to  whom  it 
was  to  be  delivered  at  Port  L'Orient,  they  paying  freight 
according  to  charter  party  ;  that  the  Prussian  claimant  was 
neither  freighter,  lader,  or  consignee  ;  and  had  no  other 
interest  or  concern  in  the  matter  than  to  lend  his  name  and 
conscience ;  for  he  swore  that  the  cargo  was  his  property, 
and  laden  on  or  before  the  6th  of  October,  1746,  and  yet 
the  ship  was  then  in  ballast,  and  the  whole  of  the  cargo  in 
question  was  not  laden  before  May  1747, 

Several  other  Prussian  claiipcis  had,  in  like  manner?  come 
out  so  clearly  to  be  merely  colourable,  that  Mons.  An- 
drie,  from  his  said  letter  tlie  29th  of  May  and  9th  of  June 
:J7473  appears  to  have  been  ashamed  of  tliem^ 

THIRD    PROPOSITION. 

"  That  Lord  Carteret,  m  his  said  two  conversations, 
specified  in  your  Majesty's  name,  what  goods  should  be 
deemed  contraband." 

Answer.  The  fact  makes  this  question  totally  imma- 
terial, because  no  goods  condemned  as  contraband,  or 
which  were  alleged  to  be  so,  are  so  much  as  now  suggest- 
ed to  have  been  Prussian  property  in  the  said  lists  A.  and 
B ;  and  therefore,  whether  as  enemy's  property  or  contra- 
band, they  were  either  way  rightly  condemned.;  and,  the 
bills  of  lading  being  false,  the  ships  could  not  be  entitled  to 
freight. 

But  if  the  question  was  material,  the  verbal  declarations 
of  a  minister  in  conversation  might  shew  what  he  thought 
contraband  by  the  law  of  nations,  biit  never  could  be  un- 
derstood to  be  equivalent  to  a,  treaty  derogating  from  th^t 
Iaw»  ^ 


236  APPENDIX. 

All  the  observations  upon  the  other  parts  ot"  these  ver- 
bal declarations  hold  equally  as  to  this. 

rOURTII    PROPOSITIOX. 

*'  That  the  British  ministers  have  said  that  these  ques- 
tions were  decided  according  to  the  laws  of  England." 

Answer.  They  must  have  been  misunderstood;  for 
the  law  of  England  says,  that  all  captures  at  sea,  as  prize, 
in  time  of  war,  must  be  judged  of  in  a  court  of  admiralty, 
according  to  the  law  of  nations  and  particular  treaties, 
where  there  are  any. 

There  never  existed  a  case  where  a  court,  judging  ac- 
cording to  the  laws  of  England  only,  ever  took  cognizance 
of  prize. 

The  property  of  prizes  being  given  daring  the  last  war 
to  the  captors,  your  majesty  could  not  arbitrarily  release 
the  capture,  but  left  all  cases  to  the  decision  of  the  proper 
courts,  judging  by  law  of  nations  and  treaties  where  there 
were  any ;  and  it  never  was  imagined  that  the  property  of 
aforeign  subject,  taken  as  prize  on  the  high  seas,  could  be 
affected  by  laws  peculiar  to  England. 

FIFTH    PROPOSITION. 

*'  That  your  majesty  could  no  more  erect  tribunals  for 
trying  these  matters  than  the  king  of  Prussia." 

Answer.  Each  crown  has,  no  doubt,  an  equal  right  to 
erect  admiralty  courts  for  the  trial  of  prizes  taken  by  vir- 
tue of  their  respective  commissions ;  but  neither  has  a  right 
to  try  the  prizes  taken  by  the  other,  or  to  reverse  the  sen- 
tences given  by  the  other's  tribunal.  The  only  regular 
method  of  rectifying  their  errors  is,  by  appeal  to  the  supe- 
rior court. 


APTENDIX.  337 

This  is  the  clear  law  of  nations  ;  and  by  this  method 
prizes  have  always  been  determined  in  every  other  mari- 
time country  of  Europe  as  well  as  England. 

SIXTH    PROPOSITION. 

*'  That  the  sea  is  free." 

Answer.  They  who  maintain  that  proposition  in  its 
utmost  extent,  do  not  dispute  but  that  when  two  powers 
are  at  war  they  may  seize  the  effects  of  each  other  upon 
the  high  seas,  and  on  board  the  ships  of  friends  ;  therefore 
that  controversy  is  not  in  the  lea,st  applicable  upon  the  pre- 
sent occasion.* 

SEVENTH    PPvOPOSITION. 

"  Great  Britain  issued  reprisals  against  Spain,  on  ac- 
count of  captui-es  at  sea." 

Answer.  These  captures  were  not  made  in  time  of 
war  with  any  power. 

They  were  not  judged  of  by  courts  of  admiralty,  accord- 
ing to  the  law  of  nations  and  treaties,  but  hy  rules,  which 
were  themselves  complained  of  in  revenue  courts ;  the  da- 
mages were  afterwards  admitted,  liquidated  at  a  certain 
sum,  and  agreed  to  be  paid  by  a  convention,  which  was 
not  performed ;  therefore  reprisals  issued,  but  they  were 
general.  No  delfts  due  here  to  Spaniards  were  stopped  ; 
no  Spanish  effects  here  were  seized ;  which  leads  to  one 
observation  more. 

The  king  of  Prussia  has  engaged  his  royal  word  to  pay 
the  Silesia  debt  to  private  men. 

It  is  negotiable,  and  many  parts  may  have  been  assigned 
to  the  subjects  of  other  powers.  It  will  not  be  easy  to  find 

•  This  appears  from  Grotius  in  th«  passages  above  cited,  lib.  3.  cap.  3. 
sgcj^>.  5,  mi.  4.  in  his  notes ;  and  lib.  3.  cap.  6.  sect.  6.  in  tus  notes. 


m 


33S  APPENDIX. 

an  instance  where  a  prince  has  thought  fit  to  make  repri- 
sals upon  a  debt  due  from  himself  to  private  men.  There 
is  a  confidence  that  this  will  not  be  done.  A  private  man 
lends  money  to  a  prince  upon  the  faith  of  an  engagement 
of  honor,  because  a  prince  cannot  be  compelled,  like  other 
men,  in  an  adverse  way,  by  a  court  of  justice.  So  scrupu- 
lously did  England,  France,  and  Spain  adhere  to  this  public 
faith,  that  even  during  the  war  they  suffered  no  irquiry  to 
be  made  whether  any  part  of  the  public  debts  was  due  to 
subjects  of  the  enemy,  though  it  is  certain  many  English 
had  money  in  the  French  funds,  and  many  French  had  mo- 
ney in  ours. 

This  loan  to  the  late  Emperor  of  Germany,  Charles  the 
Vlth,  in  January  1734-5,  was  not  a  state  transaction,  but  a 
mere  private  contract  with  the  lenders,  who  advanced  their 
money  upon  the  emperor's  obliging  himself,  his  heirs  and 
posteritv,  to  repay  the  principal,  with  interest,  at  the  rate, 
in  the  manner,  and  at  the  times  in  the  contract  mentioned, 
without  any  delay,  demur,  deduction  or  abatement  what- 
soever ;  and,  lest  the  words  and  instruments  made  use  of 
should  not  be  strong  enough,  he  promises  to  secure  the  per- 
formance of  his  contract  in  and  by  such  other  instruments, 
method,  manner,  form,  and  words,  as  should  be  most  ef- 
fectUrd  and  valid  to  bind  the  said  emperor,  his  heirs,  suc- 
cessors, and  posterity,  or  as  the  lenders  should  reasonabl}"- 
desire. 

As  a  specific  real  security,  he  mortgaged  his  revenues  ^^H 
arising  from  the  duchies  of  Upper  and  Lower  Silesia  for  *5'-Sl^H 
payment  of  principal  and  interest;  and  the  whole  debt, 
principal  and  interest,  was  to  be  discharged  in  the  year 
1745.  If  the  money  could  not  be  paid  out  of  the  revenues 
of  Silesia,  the  emperor,  his  heirs  and  posterity,  still  re- 
mained debtors,  and  were  bound  to  pay.  The  eviction  or 
destruction  of  a  thing  mortgaged,  does  not  extinguish  the 
dett  or  discharge  the  debtor. 


'0 


APPENDIX.  339 

Therefore  the  empress  queen,  without  the  consent  of 
the  lenders,  made  it  a  condition  of  her  yielding  the  duchies 
of  Silesia  to  his  Prussian  majesty,  that  he  should  stand  in 
the  place  of  the  late  emperor  in  respect  of  this  debt. 

The  seventh  of  the  preliminary  articles  between  the 
Queen  of  Hungary  and  the  King  of  Prussia,  signed  at 
Breslau  the  11th  of  June  1742,  is  in  these  words:  "  Sa 
majestS  le  rot  de  Prtisse  se  charge  du  seul  payment  de  la 
^omme  hypothec,  iiec  stir  la  Silesie,  aux  marchands  Anglois, 
selofi  le  contruJ  signe  d  Londres  le  7me  de  Janvier  1734-5." 

This  siipuiation  is  confirmed  by  the  ninth  article  of  the 
treaty  between  iheir  said  majesties,  signed  at  Berlin  the 
28th  of  July  1742. 

Also  renewed  and  confirmed  by  the  second  article  of  the 
treaty  between  their  said  majesties,  signed  at  Dresden  at 
25th  of  December  1745. 

In  consideration  of  the  empress  queen's  cession,  his 
Prussian  majesty  has  engaged  to  her  that  he  will  pay  this 
money  selon  le  contract,  and  consequently  has  bound  him- 
self to  stand  in  the  place  of  the  late  emperor  in  respect  of 
this  money,  to  all  intents  and  purposes. 

The  late  emperor  could  not  have  seized  this  money  as 
reprisals,  or  even  in  case  of  open  war  between  the  two  na- 
tions, because  his  faith  was  engaged  to  pay  it  without  any 
delay,  demur,  deduction,  or  abatement  whatsoever.  If 
these  wordsushould  not  extend  to  all  possible  cases,  he  halli 
plighted  his  honor  to  bind  himself  by  any  other  form  of 
words  more  effectually  to  pay  the  money ;  and  therefore 
was  liable  at  any  time  to  be  called  upon  to  declare  express- 
ly that  it  should  not  be  seized  as  reprisals,  or  in  case  oi" 
war;  which  is  very  commonly  expressed  when  sovereign 
princes  or  states  borrow  money  from  foreigners.  There- 
fore, supposing  for  a  moment  that  his  Prussian  majesty't- 
complaint  was  found<:d  in  justice  and  the  law  of  nations, 
and  that  he  had  a  right  to  make  reprisals  in,  general,  lir 
could  not.  consistent  with  his  engagemept  to""{hc  empress 


340  APPENDIX. 

queen,  seize  this  money  as  reprisals.  Beside,  this  whole 
debt,  according  to  the  contract,  ought  to  have  been  dis- 
charged in  174-5.  It  should,  in  respect  of  the  private  cre- 
ditors, in  justice  and  equity,  be  considered  as  if  the  con- 
tract had  been  performed ;  and  the  Prussian  complaints  do 
not  begin  till  1745,  after  the  whole  debt  ought  to  have 
been  paid. 

Upon  this  principle  of  natural  justice,  French  ships  and 
j^lll effects  wrongfully  taken  after  the  Spanish  war,  and  before 
the  French  war,  have,  during  the  heat  of  the  war  with 
France,  and  since,  been  restored  by  sentence  of  your  ma- 
jesty's courts  to  the  French  owners.  No  such  ships  or 
effects  ever  were  attempted  to  be  confiscated  as  enemy's 
property  here  during  the  war  ;  beca\ise,  had  it  not  been  for 
the  wrong  first  done,  these  effects  would  not  have  been  in 
your  majesty's  dominions.  So,  had  not  the  contract  been 
first  broke  by  non-payrnent  of  the  whole  loan  in  1745,  this 
money  would  not  have  been  in  his  Prussian  majesty's 
hands. 

Your  majesty's  guaranty  of  these  treaties  is  entire,  and 
must  therefore  depend  upon  the  same  conditions  upon 
which  the  cession  was  made  by  the  empress  queen. 

But  this  reasoning  is,  in  some  measure,  superfluous ; 
because,  if  the  making  any  reprisals  upon  this  occasion  be 
imjustifiable,  which  we  apprehend  we  have  shewn,  then  it 
is  not  disputed  but  that  the  non-payment  ofthis  money 
would  be  a  breach  of  his  Prussian  majesty's  engagements, 
and  a  renunciation,  on  his  part,  of  those  treaties. 

All  which  is  most  humbly  submitted  to  your  majesty's 
royal  wisdom. 

GEO.  LEE. 

G.  PAUL. 

1).  RY]:)ER. 

W.  MURRAY. 
Jamcfru  IS.  17.'-. 


APriiNDiS^t  34.1 

NO.  II. 

President's  instructions  to  private 
armed  vessels. 

1.  The  tenor  of  your  commission  under  the  act  of  Con- 
gress, entitled  "  an  act  concerning  letters  of  marque,  prizes 
and  prize  goods,"  a  copy  of  which  is  hereto  annexed,  will 
be  kept  constantly  in  your  view.  The  high  seas,  referred 
to  in  your  commission,  you  will  understand  generally,  to 
refer  to  low-water  mark ;  but  with  the  exception  of  the 
space  within  one  league,  or  three  miles,  from  the  shore  of 
countries  at  peace  both  with  Great  Britain  and  with  the 
United  States.  You  may  nevertheless  execute  your  com- 
mission  within  that  distance  oi  the  shore  of  a  nation  at  war 
with  Great  Britain,  and  even  on  the  waters  within  the  ju- 
risdiction of  such  nation,  if  permitted  so  to  do. 

2.  You  are  to  pay  the  strictest  regard  to  the  rights  of 
neutral  powers,  and  the  usages  of  civilized  nations ;  and 
in  all  your  proceedings  towards  neutral  vessels,  you  are 
to  give  them  as  little  molestation  or  interruption  as  will 
consist  with  the  right  of  ascertaining  their  neutral  charac- 
cer,  and  of  detaining  and  bringing  them  in  for  regular  ad- 
judication, in  the  proper  cases.  You  are  particularly  to 
avoid  even  the  appearance  of  using  force  or  seduction, 
with  a  view  tojijideprive  such  vessels  of  their  crews,  or  of 
their  passengers,  other  than  persons  in  the  military  ser- 
vice of  the  enemy. 

3.  Towards  enemy  vessels  and  their  crews,  you  are  to 
proceed,  in  exercising  the  rights  of  war,  with  all  the  jus* 
tice  and  humanity  which  characterize  the  nation  of  which 
you  are  members. 

4.  The  master  and  one  or  more  of  the  principal  persons 
belonging  to  captured  vessels,  are  to  be  sent,  as  soon  aftef 
the  capture  as  may  be,  to  the  judge  or  judges  of  the  pro- 
per court  in  the  United  States,  to  be  examined  upon  oath, 
touching  the  interest  or  property  of  the  captured  vess'l  -nfl 

44 


342  APPENDIX. 

her  lading  :  and  at  the  same  time,  are  to  be  delivered  to  the 
judge  or  judges,  all  passes,  charter  parties,  bills  of  lading, 
invoices,  letters  and  other  documents,  and  writings  found 
on  board  ;  the  said  papers  to  be  proved  by  the  affidavit  of 
the  commander  of  the  capturing  vessel,  or  some  other  per- 
son present  at  the  capture,  to  be  produced  as  they  were  re- 
ceived, without  fraud,  addition,  subduction  or  embezzle- 
ment. 

By  command  of  the  President  of  the  U.  States. 

JAMES  MONROE,  Secretary  of  Stat  a. 


NO.  III. 

DOCUMENTS    RELATING    TO    THE    BLOCKADE    OF 
MARTINIQUE    AND    GUADALOUPE. 

(Copy.) 

Mr  Merry  to  Mr,  Madison, 

Washington,  April  12, 1804. 

SIR, 

Mr.  Thornton  not  having  failed  to  transmit  to  his  ma- 
jesty's government  an  account  of  the  representation  which 
you  were  pleased  to  address  to  him,  under,  date  of  the  27th 
October  last  year,  respecting  the  blockade  of  the  islands  of 
Martinique  and  Guudaloupe,  it  is  with  great  satisfaction. 
Sir,  that  I  have  just  received  his  majesty's  commands  sig- 
nified to  me  by  his  principal  secretary  of  state  for  foreign 
affairs,  under  date  of  the  6th  of  January  last,  to  communi- 
cate to  you  the  instructions  which  have,  in  consequence  of 
your  representation,  been  sent  to  commodore  Hood,  and  to 
the  judges  of  the  vice  admiralty  courts  in  the  West  In- 
dies. 

I  have,  accoi'dingly,  the  honour  to  transmit  to  you,  Sir. 
crtclo'jcd,  \\\z  copy  oi  a  letter  from  Sir  Evean  Nepean,  se- 

t 


APPKNDIX.  343 

cretary  to  the  board  of  admiralty,  to  Mr.  Hammond,  hi» 
majesty's  under  secretary  of  state  for  foreign  affairs,  spe- 
cifying the  nature  of  the  instructions  which  have  been 
given. 

His  majesty's  government  doubt  not  that  the  prompti- 
tude which  has  been  manifested  in  redressing  the  griev- 
ance complained  of  by  the  government  of  the  United  States 
will  be  considered  by  the  latter  as  an  additional  evidence  of 
his  majesty's  constant  and  sincere  desire  to  remove  any 
ground  of  misunderstanding  that  could  have  a  tendency  to 
interrupt  the  harmony  which  so  happily  subsists  between 
his  government  and  that  of  the  United  States. 
I  have  the  honour  to  be. 

With  high  respect  and  consideration, 
Your  most  obedient  humble  servant, 

(Signed)  ANTH«  MERRY. 


(COPY.) 

Admiralty' Office,  5th  January,  1804. 
SIR, 

HAVING  communicated  to  the  lords  of  the  admi- 
ralty, lord  Hawkesbury's  letters  of  the  23d  ultimo,  inclo- 
sing the  copy  of  a  dispatch  which  his  lordship  had  receiv- 
ed from  Mr.  Thornton,  his  majesty's  charge  d'affairs  in 
America,  on  the  subject  of  the  blockade  of  the  islands  of 
Martinique  and  Guadaloupe,  together  with  the  report  of 
the  advocate  general. 

Thereupon,  I  have  their  lordship's  commands  to  acquaint 
you  for  his  lordship's  information,  that  they  have  sent  or- 
ders to  commodore  Hood,  not  to  consider  any  blockade  of 
those  islands  as  existing,  unless  in  respect  of  particular 
ports  which  may  be  actually  invested,  and  then  not  to  cap- 
ture vessels  bound  to  such  ports  unless  they  shall  previous- 
ly h^ve  been  warned  not  to*  enter  them,  and  that  they  haye. 


344  APPENBIX. 

also  sent  the  necessary  directions  on  the  subject  to  the 
judges  of  the  vice  admiralty  courts  in  the  West  Indies  and 
America. 

I  am,  &c. 
(Signed)  EVEAN  NEPEAN. 

George  Hammond,  esq. 


JfK.    MERRT   TO    MR.   MADISOff. 

Washington,  April  12, 1804. 
3IR, 

I  HAVE  the  honour  to  acquaint  you  that  I  have  just 
received  a  letter  from  rear  admiral  sir  John  Duckworth, 
commander  in  chief  of  his  majesty's  squadron  at  Jamaica, 
daitU  the  second  of  last  month,  in  which  he  desires  me  to 
communicate  to  the  government  of  the  United  States,  that 
he  has  found  it  expedient  for  his  majesty's  service,  to  con- 
vert the  siege,  which  he  lately  attempted,  of  Curacoa,  into 
a  blockade  of  :hat  island. 

I  cannot  dou,b|,  sir,  that  this  blockade  will  be  conducted 
conformably  to  the  instructions  which,  as  I  have  had  the 
honour  to  acquaint  you  in  another  letter  of  this  date,  have 
been  recently  sent  on  this  subject  to  the  commander  \\\ 
chief  of  his  majesty's  forces,  and  to  the  judges  of  the  vice 
i?idmiralty  courts,  in  the  West  Indies,  should  the  smallness 
of  the  island  of  Curacoa  still  render  necessary  any  dis- 
tinction of  the  investment  being  confined  to  particulai 
ports  *^ 

I  have  the  honour  to  be,  &c. 
(Signed)  ANT.  i^IERRY. 


APPENDIX..  344 


No.  IV. 


CORHESPONDENCE    BETWEEN    MR.    PINKNEY    AND 
MARQUIS    WELLESLEY    ON    BLOCKADES. 

Notwithstanding  the  explicit  engagement  on  the  part  of 
the  British  government  contained  in  the  above  documents, 
and  confirmed  by  the  decisions  of  their  prize  courts,  block- 
ades continued  to  be  proclaimed  without  an  actual  investi- 
ture of  the  particular  ports,  and  neutral  vessels  bound  to 
such  ports  were  captured  without  having  been  previously 
warned  not  to  enter  them.  These  blockades  were  defect- 
ive, inasmuch  as  they  were  constructively  established  and 
cons'.ructivcly  notified.  Their  unlawfulness  had  been  set- 
tled both  by  diplomatic  and  judicial  authority,  in  the  war 
which  was  terminated  by  the  treaty  of  Amiens ;  but  this 
did  not  {)revent  their  revival  in  the  late  war.  The  practice 
of  the  former  war,  on  account  of  the  remoteness  of  the 
United  States  from  Europe,  had  justified  a  conjectural  des- 
tination from  America  to  Amsterdam,  although  the  block- 
ade of  that  port  had  been  proclaimed  in  the  usual  manner, 
and  the  party  was  proved  to  have  known  its  commence- 
ment. This  rule  was  incorporated  into  the  treaty  between 
the  United  States  and  Great  Britain,  which  was  concluded 
sub  spe  rati  in  1806,  but  not  ratified.  The  British  nego- 
tiators of  that  treaty,  however,  declined  to  insert  in  it  a  de- 
finition of  blockade  similar  to  tliat  of  the  convention  of 
1801  between  Russia  and  Great  Britain,  although  they  ad- 
mitted the  doctrine  of  the  British  prize  courts  to  be  con- 
formable to  such  a  definition.  That  this  omission  was  not 
without  meaning,  is  rendered  evident  by  the  continuance 
of  the  blockade  of  the  European  coast,  from  Brest  to  the 
Elbe,  proclaimed  in  May,  IfiOG,  but  which  if  valid  in  point 
of  notice,  was  defective  for  want  of  an  actual  investiture  of 
the  ports  and  places  included  in  its  terms.  This  blockade, 
and  other  inhibitions  of  neutral  trade  of  a  like  character, 


346  APPEKDIX. 

having  been  made  by  France  the  ground  of  issuing  the  Ber- 
lin decree  of  November,  1806,  and  iliat  decree  having 
been  retaliated  by  the  British  orders  in  council  of  January 
and  November,  1807,  and  of  April,  1809;  it  became  an 
object  of  the  diplomatic  discussions  which  ensued  tespect- 
ing  the  repeal  of  these  edicts  to  ascertain  whether  the 
blockade  of  May,  1806,  v/as  merged  in  the  orders  subse- 
quently issued,  and  (in  case  the  Berlin  decree  should  be 
revoked)  would  fall  to  the  ground  with  these  orders;  or 
whether  the  blockade  would  revive  after  the  revocation  of 
the  decrees  and  orders.  Mr.  Pinkney,  the  minister  of  the 
United  States  in  London,  after  a  great  deal  of  discussion, 
succeeded  in  obtaining  from  the  British  secretary  for  for- 
eign affairs,  an  admission,  that  either  the  blockade  was 
merged  in  the  orders,  and  would  consequently  be  involved 
in  their  repeal,  or  if  revived,  would  be  enforced  in  the 
manner  required  by  the  law  of  nations.  In  the  course  of 
this  discussion,  the  following  letters  were  written,  which 
are  here  inserted  without  any  other  apology  than  the  pre» 
ceding  explanation. 


LORD    WELLESLEY    TO    MR.    PINKNEY.* 

Foreign  Office,  December  29,  1810. 

SIR, 

In  acknov.'ledging  the  receipt  of  your  letter  of  the  10th 
instant,  I  must  express  my  regret,  that  you  should  have 
thought  it  necessary  to  introduce  into  that  letter  any  to- 
pics, which  might  tend  to  interrupt  the  conciliatory  spirit, 
in  which  it  is  the  sincere  disposition  of  his  majesty's  gov- 
ernment to  conduct  every  negotiation  with  the  government 
of  the  United  States. 

'  This  letter  was  not  received  till  Janu^  SJ,  1811,  at  night. 


APPENDIX.  347 

From  an  anxious  desire  to  avoid  all  discussions  of  that 
tendency,  I  shall  proceed  without  any  further  observation 
to  communicate  to  you  the  view  which  his  majesty's  gov- 
ernment has  taken  of  the  principal  question  which  fornxed 
the  object  of  my  inquiry,  during  our  conference  of  the  5th 
instant.  The  letter  of  the  French  minister  for  foreign  af- 
fairs to  the  American  minister  at  Paris,  of  the  9th  Au- 
gust, 1810,  did  not  appear  to  his  majesty's  government,  to 
contain  such  a  notification  of  the  repeal  of  the  French  de- 
crees of  Berlin  and  Milan,  as  could  justify  his  majesty's 
government  in  repealing  the  British  orders  in  council. 
That  letter  states  "  that  the  decrees  of  Berlin  and  Milan 
are  revoked,  and  that  from  the  1st  of  November,  1810, 
they  will  cease  to  be  in  force,  it  being  understood  that  in 
consequence  of  this  declaration,  the  English  shall  revoke 
their  orders  in  council  and  renounce  the  new  principles  of 
blockade  which  they  have  attempted  to  establish."  The 
purport  of  this  declaration  appeared  to  be  that  the  repeal  of 
the  decrees  of  Berlin  and  Milan  would  take  effect  from  the 
1st  of  November,  provided  that  Great  Britain  antecedent- 
ly to  that  day,  and  in  consequence  of  this  declaration,, 
should  revoke  the  orders  in  council  and  should  renounce 
those  principles  of  blockade,  which  the  French  government 
alleged  to  be  new.  A  separate  condition  relating  to  Ame- 
rica, seemed  also  to  be  contained  in  this  declaration,  by 
which  America  might  understand,  that  the  decrees  of  Ber- 
lin and  Milan  would  be  actually  repealed  on  the  1st  of  No- 
vember, 1810,  provided  that  America  should  resent  an^- 
refusal  of  the  British  government  to  renounce  the  new- 
principles  of  blockade,  and  to  revoke  the  orders  in  counciL 

By  your  explanation  it  appears,  that  the  American  gov- 
ernment understands  the  letter  of  the  French  minister  as 
announcing  an  absolute  repeal,  on  the  1st  of  November, 
1810,  of  the  French  decrees  of  Berlin  and  Milan  ;  which 
repeal,  however,  is  not  to  continue  in  force  unl-ss  the  Brl- 


m 


*♦ 


'^^t 


o4&  APPENDIX.  :%  ■ ' 

tish  govenuncnt,  within  a  reasonable  time  after  the  1st  of 
November,  1810,  shall  fulfil  the  two  conditions  stated  dis- 
tinctly in  the  letter  of  the  French  minister.  Under  this 
explanation,  if  nothing  more  had  been  required  from  Great 
Britain,  for  the  purpose  of  securing  the  continuance  of  the 
repeal  of  the  French  decrees,  than  the  repeal  of  our  orders 
in  council,  I  should  not  have  liesitated  to  declare  the  per- 
fect readiness  of  this  government  to  fulfil  that  condition. 
On  these  terms,  the  British  government  has  always  been 
sincerely  disposed  to  repeal  the  orders  in  council.  It  ap- 
pears, however;,  not  only  by  the  letter  of  the  French  minis- 
ter, but  by  your  explanation,  that  the  repeal  of  the  orders 
in  council  will  not  satisfy  either  the  French  or  the  Ameri- 
can government.  The  British  government  is  further  re- 
quired, by  the  letter  of  the  French  minister,  to  renounce 
those  principles  of  blockade  which  the  French  gov- 
ernment alleges  to  be  new.  A  reference  to  the  terms 
of  the  Berlin  decree  will  serve  to  explain  the  extent 
of  this  requisition.  The  Berlin  decree  states,  that  Great 
Britain  ""  extends  the  right  of  blockade  to  commercial  un- 
fortified towns,  and  to  ports,  harbors,  and  mouths  ©f  rivers, 
Vv-hich,  according  to  the  principles  and  practice  of  all  civil- 
ized nations,  is  only  applicable  to  fortified  places.  On  the 
part  of  the  American  government,  I  understand  you  to  re- 
quire that  Great  Britain  should  revoke  her  order  of  block- 
;ide  of  May,  1806.  Combining  your  requisition  with  that 
of  the  French  minister,  I  must  conclude,  that  America  de- 
mands the  revocation  of  that  order  of  blockade  as  a  practi- 
cal instance  of  our  renunciation  of  diose  principles  of  block- 
:ide  which  are  condemned  by  the  French  government. 
'1  hose  principles  of  blockade  Great  Britain  has  asserted  to 
be  ancient  and  established  by  the  laws  of  maritime  war,  ac- 
knowledged by  all  civilized  nations,  and  on  which  depend 
the  most  valuable  rights  and  interests  of  this  nation.  If 
the  Berlin  and  Miliiu  decrees  are  to  be  considered  as  slill 


^v 


■f 


in  fbt-ce,  unless  Great  Britain  shall  renounce  these  estab- 
lished foundations  of  her  maritime  rights  and  interests,  the 
period  of  time  is  not  yet  arrived,  when  th-;  repeal  of  her 
orders  in  council  can  be  claimed  from  her,  eiiher  with  re- 
ference to  the  promise  of  this  government,  or  to  the  safety 
and  honor  of  the  nation,  i  trust  that  the  justice  of  the 
American  government  will  liat  consider,  that  France,  by 
the  repeal  of  her  obnoxious  dccreeo  under  such  a  condi- 
tion, has  placed  the  question  in  that  state  which  can  war- 
rant America  in  enforcing  the  non-intercourse  act  against 
Great  Britain  and  not  against  France*  In  reviewing  the 
actual  state  of  this  question,  America  cannot  fail  to  observe 
the  situation  in  which  the  commerce  of  neutral  nations  has 
been  placed  by  many  recent  acts  of  the  French  govern- 
ment ;  nor  can  America  reasonably  expect  that  the  system 
of  violence  and  injustice,  now  pursued  by  France  with  un- 
remitted activity  (while  it  serves  to  illustrate  the  true  spi- 
rit of  her  intentions)  should  not  require  some  precautions 
of  defence  on  the  part  of  Great  Britain. 

Having  thus  stated  my  view  of  the  several  considera- 
tions, arising  from  the  letter  of  the  French  minister,  and 
from  that  with  which  you  haVe  honored  me ;  it  remains 
only  to  express  my  solicitude  that  you  should  correct  any 
interpretation  of  either  which  you  may  deem  erroneous. 
If  either  by  the  terms  of  the  original  decree  to  which  the 
French  minister's  letter  refers,  or  by  any  other  authentic 
document,  you  can  prove  that  the  decrees  of  Berlin  and 
Milan  are  absolutely  repealed,  and  that  no  further  condi- 
tion is  required  of  Great  Britain  than  the  repeal  of  her  or- 
ders in  council,  I  shall  receive  any  such  information  with 
most  sincere  satisfaction,  desiring  you  to  understand,  that 
the  British  government  retains  an  anxious  solicitude  to  re- 
voke the  orders  in  council^  as  soon  as  the  Berlin  and  Mi*- 
Ian  decrees  shall  be  effectually  repealed  without  conditions 
injurious  to  the  maritime  rights  and  honor  of  the  united 
kingdom.  I  have  the  honor  to  b?,  with  gre;\t  respect  and 
T  4^ 


3oG  APPENBIX', 

consideration,  sir,  your  most  obedient,  and  humble  ser- 
va,nt, 

(Signed)  WELLESLEY. 

William  Pinkney,  Esquire,  S)C\ 


MR.    PINKNT-Y    TO    T.ORIJ    •WF.TJ.F,«5L,EY. 

Great  Cumberland  Place,  January  14,  1811. 

MY    LORD, 

I  have  received  the  letter  which  you  did  me  the  honor 
to  address  to  me  on  the  29th  of  last  month,  and  will  not 
fail  to  transmit  a  copy  of  it  to  my  government.  In  the 
mean  time  I  take  the  liberty  to  trouble  you  with  the  fol- 
lowing reply,  which  a  severe  indisposition  has  prevented 
me  from  preparisg  soonen 

The  first  paragraph  seems  to  make  it  proper  for  me  to 
begin  by  saying,  that  the  topics  introduced  into  my  letter 
of  the  10th  of  December,  were  intimately  connected  with 
its  principal  subject,  and  fairly  used  to  illustrate  and  ex- 
plain it ;  and  consequently,  that  if  they  had  not  the  good 
fortune  to  b-e  acceptable  to  your  lordship,  the  fatdt  was  net 
mine. 

It  was  scarcely  possible  to  speak  with  more  modera- 
tion than  my  paper  exhibits,  of  that  portion  of  a  long  list 
of  invasions  of  the  rights  of  the  United  States,  which  it  ne- 
cessarily reviewed,  and  of  the  apparent  reluctance  of  the 
British  government  to  forbear  those  invasions  in  future. 
I  do  not  know  that  I  could  more  carefully  have  abstained 
from  whatever  might  tend  to  disturb  the  spirit  which  your 
lordship  ascribes  to  his  majesty's  government,  if,  instead 
of  being  utterly  barren  and  unproductive,  it  had  occasion- 
ally been  visible  in  some  practical  result,  in  some  conces- 
sion cither  to  friendship  or  to  justice.  It  would  not  have 
been  very  surprising,  nor  very  culpable  perhaps,  if  I  had 
wholly  forgotten  to  address  myself  to  a  spirit  of  conciliii;: 

•  t> 


"^  appendix:.  351 

tion,  which  had  met  the  most  equitabljc  claims  wuh  steady 
and  unceasing  repulsion ;  which  had  yielded  nothing  that 
could  be  denied ;  and  had  answered  complaints  of  injury 
by  multiplying  their  causes.  With  this  forgetfulness,  how- 
ever, I  am  not  chargeable ;  for,  against  all  the  discourage- 
ments suggested  by  the  past,  I  have  a£ted  still  upon  a  pre- 
sumption that  the  disposition  to  conciliate,  so  often  pro- 
fessed, would  finally  be  proved  by  some  better  evidence 
than  a  perseverance  in  oppressive  novelties,  as  obviously 
incompatible  with  such  a  disposition  in  those  who  enforce 
them,  as  in  those  whose  patience  they  continue  to  exer- 
c^sc. 

Upon  the  commencement  of  the  second  paragraph,  I 
must  observe,  that  the  forbearance  which  it  announces 
might  have  afforded  some  gratification,  if  it  had  been  fol- 
lowed by  such  admissions  as  my  government  is  entitled  to 
expect,  instead  of  further  manifestation  of  that  disregard 
of  its  demands,  by  which  it  has  so  long  been  wearied.  It 
has  never  been  my  practice  to  seek  discussions,  of  which 
the  tendency  is  merely  to  irritate ;  but  I  beg  your  lordship 
to  be  assured,  that  I  feel  no  desire  to  avoid  them,  what- 
ever may  be  their  tendency,  when  the  rights  of  my  country 
require  to  be  vindicated  against  pretensions  that  deny,  and 
conduct  that  infringes  them. 

If  I  comprehend  the  other  parts  of  your  lordship's  let- 
ter, they  declare  in  effect,  that  the  British  government  will 
repeal  nothing  but  the  orders  in  CQimcil,  and  that  it  cannot 
at  present  repeal  even  them,  because  in  the  first  place,  the 
French  government  has  required,  in  the  letter  of  the  Duke 
of  Cadore  to  General  Armstrong,  of  the  5th  of  August, 
not  only  that  Great  Britain  shall  revoke  those  orders,  but 
that  she  shall  renounce  certain  principles  of  blockade  (sup- 
posed to  be  explained  in  the  preamble  to  the  Berlin  de- 
cree) which  France  alleges  to  be  new ;  and,  in  the  second 
place,  because  the  American  government  has  (as  you  con- 
jclude)  demanded  the  revocation  of  the  British  order  of 


S5'2  APPENDIX. 

blockade  of  ?>Iay,  lS06,  as  a  practical  hi§Jts.nce  of  that  same 
renunciation:,  or,  in  other  words,'ms  R^ji^  itself  gj;^|^tyf 
not  openly  indeed,  but  indirectly  ^d  covertly,  to  tKe*.  en- 
tire requisition  of  France,  as  you  understand  that  requisi- 
tion. 

It  is  certainly  true  that  the  American  gov^ei-ntnent  has 
required,  as  indispensible  in  the  view  of  its  acts  of  inter- 
course and  non-intercourse,^e  annulment  of  the  British 
blockade  of  May,  1896  ;  and  further,  that  it  has  through 
me  declared  its  confident  expectation  that  other  blockades 
of  a  similar  character  (including  that  of  the  island  of  Zea- 
land) will  be  discontinued.  But  by  what  process  of  rea- 
son your  lordship  has  arrived  at  the  conclusion,  that  the 
government  of  the  United  States  intended  by  this  requisi- 
tion to  become  the  champion  of  the  edict  of  Berlin,  to  fa- 
shion its  principles  by  those  of  France,  while  it  affect- 
ed to  adhere  to  its  own,  and  to  act  upon  some  partner- 
ship in  doctrines,  which  it  would  fain  induce  you  to  ac- 
knowledge, but  could  net  prevail  upon  itself  to  avow,  I  am 
not  able  to  c  njecture.  The  frank  and  honorable  character 
of  the  American  government  justifies' me  in  saying  that,  if 
it  had  meant  to  demand  of  Great  Britain  an  abjuration  of 
all  such  principles  as  the  French  government  may  think  fit 
to  disapprove,  it  would  not  haye  put  your  lordship  to  the 
trouble  of  discovering  that  meaning  by  the  aid  of  combina- 
tions and  inferences  discountenanced  by  the  language  of  its 
minister,  but  would  have  told  you  so  in  explicit  terms^ 
What  I  have  to  request  of  your  lordship,  therefore,  is  that 
you  will  take  our  view^s  and  principles  from  our  own  mouths, 
and  that  neither  the  Berlin  decree,  nor  any  other  act  of  any 
foreign  state,  may  be  made  to  speak  for  us  what  we  have 
not  spoken  for  ourselves. 

The  principles  of  blockade  which  the  American  govern- 
ment professes,  and  upon  the  foundation  of  which  it  has  re- 
peatedly protested  against  the  order  of  May,  1 806,  and  the 
Other  kiQcUed  innovations  of  those  extra,ordinary  times,  h^v^? 


appe:ndix.  353 

already  been  so  clearly  explained  to  your  lordship,  in  my 
letter  of  the  21st  of  September,  that  it  is  hardly  possible  to 
read  that  letter  and  misunderstand  them.     Recommended 
by  the   plainest  considerations    of  universal  equit)',   you 
will  find  them    supported  with  a  strength    of    argument 
and    a    weight    of    authority,     of   which    they    scarce- 
ly  stand   in  need,   in  the  papers  which  will  accompany 
this   letter,    or  were   transmitted   in  that  of  September. 
I   will   not  recapitulate  what   I    cannot  improve;  but    I 
must  avail  myself  of  this  opportunity  to  call  your  lordship's 
attention  a  second  time,  in  a  particular  manner,  to  one  of 
the  papers  to  which  my  letter  of  September  refers.  I  allude 
to  the. copy  of  an  official  note  of  the  12th  of  April,  1804, 
from  Mr.  Merry  to  Mr.  Madison,  respecting  a  pretended 
blockade  of  Martinique  and  Guadaloupe.     No   comment 
can  add  to  the  value  of  that  manly  and  perspicuous  exposi- 
tion of  the  law  of  blockade,  as  made  by  England  herself  in 
maintainance  of  rules  which  have  been  respected  and  upheld 
in  all  seasons  and  on  all  occasions  by  the  government  of  the 
United  States.  I  will  leave  it,  therefore,  to  your  lordship's 
consideration,  with  only  this  remark,  that,  while  that  paper 
exists,  it  will  be  superfluous  to  seek  in  any  French  docu- 
ment for  the  opinions  of  the  American  government  on  the 
matter  of  it. 

The  steady  fidelity  of  the  government  of  the  United 
States  to  its  opinions  on  that  interesting  subject  is  known  to 
every  body.  The  same  principles  which  are  found  in  the 
letter  of  Mr.  Madison  to  Mr.  Thornton,  of  the  27th  of  Oc- 
tober, 1803,  already  before  you,  were  asserted  in  l^QQ,  by 
the  American  minister  at  this  court,  in  his  correspondence 
with  Lord  Grenville,  respecting  the  blockade  of  some  of  the 
ports  of  Holland;  were  sanctioned  in  a  letter  of  the 
20th  of  September,  1800,  from  the  secretary  of  state  of 
the  United  States  to  Mr.  King,  of  which  an  extract  is  en- 
closed ;  were  insisted  upon  in  repeated  instructions  to  Mr. 
IJrIonroe  and  the  specisU  mission  of  1806;  have  been  main - 


w 


354  APPENDiXt 

tained  by  the  United  States  against  others  as  well  as  against 
England)  as  will  appear  by  the  inclosed  copy  of  instrujjtions, 
dated  the  21st  of  October,  1801,  from  Mr.  Secretary  Ma- 
dison to  Mr.  Charles  Pinkney  then  American  minister  at 
3'Iadrid ;  and  finally,  were  adhered  to  by  the  United  States, 
when  belligerent,  in  the  case  of  the  blockade  of  Tripoli. 

A  few  words  will  give  a  summary  of  those  principles  ; 
and  when  recalled  to  your  remembrance,  I  am  not  without 
hopes,  that  the  strong  grounds  of  law  and  right,  on  which 
they  stand,  will  be  as  apparent  to  your  lordship  as  they  are 
to  me. 

It  is  by  no  means  clear  that  it  may  net  fairly  be  contend-^ 
ed,  on  principle  and  early  usage,  that  a  maritime  blockade 
is  incomplete  with  regard  to  states  at  peace,  unless  the 
place  which  it  would  affect  is  invested  by  land  as  well  as  by 
sea.  The  United  States,  however,  have  called  for  the  re- 
cognition of  no  such  rule.  They  appear  to  have  contented 
themselves  with  urging  in  substance,  that  ports  not  actually 
blockaded  by  a  present,  adequate,  stationary  force,  employe 
ed  by  the  power  which  attacks  them,  shall  not  be  consid- 
ered as  shut  to  neutral  trade  in  articles  not  contraband  of 
war ;  that,  though  it  is  usual  for  a  belligerent  to  give  notice 
to  neutral  nations  when  he  intends  to  institute  a  blockade, 
it  is  possible  that  he  may  not  act  upon  his  intention  at  all, 
or  that  he  may  ejfecute  it  insufficiently,  or  that  he  may  dis- 
continue his  blockade  of  which  it  is  not  tabtumary  to  give 
any  notice :  that  consequently  the  presence  of  the  blockad- 
ing force,  is  the  natural  criterion  by  which  the  neutral  is  en- 
abled to  ascertain  the  existence  of  the  blockade  at  any  givr 
en  period,  in  like  manner  as  the  actual  investment  of  a  be- 
sieged place,  is  the  evidence  by  which  we  decide  whether 
the  siege,  which  may  be  commenced,  raised,  recommenced 
and  raised  again,  is  continued  or  not;  that  of  course  a  mere 
notification  to  a  neutral  minister  shall  not  be  relied  upon,  as 
affecting,  with  knowledge  of  the  actual  existence  of  a  block- 
;^dc,  either  his  government  or  its  citizens;  that  a  vessel 


APPENDIX,  335' 

clear*^  or  bound  to  a  blockaded  port,  shall  not  be  consid- 
ered as  violating  in  any  manner  the  blockade,  unless,  on  her 
approach  towards  such  port,  she  shall  have  been  previously 
warned  not  to  enter  it ;  that  this  view  of  the  law,  in  itself 
perfectly  correct,  is  peculiarly  important  to  nations,  situated 
at  a  great  distance  from  the  belligerent  parties,  and  there- 
fore incapable  of  obtaining  other  than  tardy  information  of 
the  actual  state  of  their  ports;  that  whole  coasts  and  coun- 
tries shall  not  be  declared,  (for  they  can  never  be  more  than 
declared)  to  be  in  a  state  of  blockade,  and  thus  the  right  of 
blockade  converted  into  the  means  of  extinguishing  the 
trade  of  neutral  nations ;  and  lastly,  that  every  blockade 
shall  be  impartial  in  its  operation,  or,  in  other  words,  shall 
n(|)t  open  and  shut  for  the  convenience  of  the  party  that 
institutes  it,  and  at  the  same  time  repel  the  commerce  of  the 
rest  of  the  world,  so  as  to  become  the  odious  instrument 
of  an  unjust  monopoly,  instead  of  a  measure  of  honorable 
war. 

These  principles  are  too  moderate  and  just  to  furnish 
any  motive  to  the  British  government  for  hesitating  to  re- 
voke its  orders  in  council,  and  those  analogous  orders  of 
blockade,  which  the  United  States  expect  to  be  recalled.  It 
can  hardly  be  doubted  that  Great  Britain  will  ultimately 
accede  to  them  in  their  fullest  extent;  but  if  that  be  a  san- 
guine calculation  (as  I  trust  it  is  not)  it  is  still  incontro- 
vertible that  a  disinclination  at  this  moment  to  acknowledge 
them,  can  suggest  no  rational  inducement  for  declining  to 
repeal  at  once  what  every  principle  disowns,  and  what  must 
be  repealed  at  last. 

With  regard  to  the  rules  of  blockades  which  the  French 
government  expects  you  to  abandon,  I  do  not  take  upon  me 
to  decide  whether  they  are  such  as  your  lordship  supposes 
them  to  be  or  not.  Your  view  of  them  may  be  correct  : 
but  it  may  also  be  erroneous  ;  and  it  is  wholly  immaterial 
to  the  case  between  the  United  States  and  Great  Britain 
whether  it  be  the  one  or  the  other. 


356  AVFENUl  __ 

As  to  such  British  blockades  as  the  United  States  desiid 
you  to  reUnquish,  you  will  not,  I  ana  sure,  allege  that  it  is 
any  reason  for  adhering  to  them  that  France  expects  you  to 
relinquish  others.  If  our  demands  are  suited  to  the  mea- 
sure of  our  own  rights,  anc^of  your  obligations  as  they  res- 
pect those  rights,  you  cannot  think  of  founding  a  rejection 
of  them  upon  any  imputed  exorbitance  in  the  theories  of  the 
French  government,  for  which  we  are  not  responsible,  and 
with  which  we  have  no  concern.  If,  when  you  have  done 
justice  to  the  United  States,  your  enemy  shouid  call  upon 
you  to  go  further,  what  shall  prevent  you  from  refusing  ? 
Your  free  agency  will  in  no  respect  have  been  impaired. 
Your  case  will  be  better,  in  truth  and  in  the  opinion  of  man- 
kind; and  you  will  be  therefore^  stronger  in  maintaining 
it,  provided  that,  in  doing  so,  you  resort  only  to  legitimate 
means,  and  do  not  once  more  forget  the  rights  of  others 
while  you  seek  to  vindicate  your  owe 

Whether  France  will  be  satisfied  with  what  you  may  do, 
is,  not  to  be  known  by  anticipation,  and  ought  not  to  be  the 
subject  of  inquiry.  So  vague  a  speculation  has  nothing  to 
do  with  your  duties  to  nations  at  peace,  and,  if  it  had,  would 
annihilate  them.  It  cannot  serve  your  interests;  for  it 
tends  to  lessen  the  number  of  your  friends,  without  adding 
to  your  security  against  your  enemies. 

You  are  required  therefore,  to  do  right,  and  to  leave  the 
consequences  to  the  future,  when  by  doing  right  you  have 
every  thing  to  gain  and  nothing  to  lose. 

As  to  the  orders  in  council,  which  professed  to  be  a  re- 
luctant departure  from  all  ordinary  rules,  and  to  be  justified 
only  as  a  system  of  retaliation  for  a  pre-existing  measure 
of  France,  their  foundation  (such  as  it  was)  is  gone  the 
moment  that  measure  is  no  longer  in  operation.  But  the 
Berlin  decree  is  repealed;  and  even  Milan  decree,  the  sue- 
,cessor  of  your  orders  in  council,  is  repealed  also.  Why  Is 
it,  then,  tliat  your  orders  have  outlived  those  edicts,  and 
fUatthey.M'Q  still  to  oppress  and  harass  c^s  before?    Your 


I 


%■ 

lordship  answers  tliis  question  explicitly  ctiougli,  but 
not  satisfactorily.  You  do  not  allege  that  the  French 
decrees  are  not  repealed  j  but  you  imagine  that  the  re- 
peal is  not  to  remain  in  force,  unless  the  British  govern- 
ment shall,  in  addition  to  the  revocation  of  its  orders  iri 
council,  abandon  its  system  of  blockade.  I  am  not  con- 
scious of  having  stated,  as  yoiir  lordship  seems  to  think, 
that  this  is  so,  and  I  believe  in  fact  that  it  is  otherwise^. 
Even  if  it  were  admitted,  however^  the  orders  in  council 
ought  nevertheless  to  be  revoked.  Can  "  the  safety  and 
honour  of  the  British  iiation"  demand  that  these  orders 
shall  continue  to  outrage  the  public  law  of  the  world,  and 
sport  with  the  indisputed  rights  of  neutral  commerce,  after 
the  pretext  which  was  at  first  invcntfcd  for  them  is  gone  ?  But 
5'OU  are  menaced  with  a  revival  of  the  French  system,  and 
consequently  may  again  be  furnished  with  the  same  pre- 
text i  Be  it  so ;  yet  still,  as  the  system  and  the  pretext  are 
at  present  at  an  end,  so,  of  course,  should  be  your  orders. 

According  to  your  mode  of  reasoning,  the  situation  of 
neutral  trade  is  hopeless  indeed.  Whether  the  Berlin  de- 
cree exists  or  not,  it  is  equally  to  justify  your  orders  in 
council.  You  issued  them  before  it  ivas  any  thing  but  a 
shadow,  and  by  doing  so  gave  to  it  all  the  substance  it 
tould  ever  claim.  It  is  at  this  moment  nothing..  It  is  re- 
voked and  has  passed  away,  according  to  your  own  admis- 
sion. You  choose,  however^  to  look  for  its  re-appearance  i 
and  you  make  your  own  expectation  equivalent  to  the  de- 
cree itself.  Compelled  to  concede  that  there  Is  ho  anti- 
heutral  French  edict  in  operation  upon  the  ocean,  you  think 
it  sufficient  to  say  that  there  ivill  be  such  an  edict,  you 
know  not  when ;  and  in  the  meantime  you  do  all  you  can 
to  verify  your  own  predittion,  by  giving  to  your  enemy  all 
the  provocation  in  your  power  to  resume  the  decrees  which 
he  has  abandoned. 

For  my  part,  my  lord,  I  know  not  what  it  is  that  the  Bri- 
tish government  requires,  with  a  vie^v  to  what  it  calls  its 
46 


V 


9 


HoS  APPENDIX.  i^ 

safety  and  its  honor^  as  an  inducement  to  irescind  its  orders 
in  council.  It  does  not,  I  presume,  im^-gine  that  such  a 
system  will  be  suffered  to  ripen  into  law.  It  must  intend 
HO  relinquish  it,  sooner  or  laier,  as  one  of  those  violent  ex- 
periments for  which  time  can  do  nothing,  and  to  which  sub- 
mission will  be  hoped  in  vain.  Yet,  even  after  the  pro- 
fessed foundation  of  this  mischievous  system  is  taken  away, 
another  and  another  is  industriously  procured  for  it;  so 
that  no  man  can  tell  at  what  time,  or  under  what  circum- 
stances it  is  likely  to  have  an  end.  "When  realities  cannot 
be  found,  possibilities  supply  their  place,  and  that,  which 
was  originally  said  to  be  retaliation  for  actual  injury,  be- 
comes at  last  (if  such  a  solicism  can  be  endured  or  imagin- 
ed) retaliation  for  apprehended  injuries,  which  the  future 
may  or  may  not  produce,  but  which  it  is  certain  have  no 
existence  noxv  ! 

I  do  not  mean  to  grant,  for  I  do  not  think,  that  the  edict 
of  Berlin  did  at  any  time  lend  even  a  colour  of  equity  to 
the  British  orders  in  council,  with  reference  to  the  United 
States :  but  it  might  reasonably  have  been  expected  that 
they,  who  have  so  much  relied  upon  it  as  a  justification, 
would  have  suffered  it  and  them  to  sink  together.  How 
this  is  forbidden  by  your  safety  or  your  honor  remains  to 
be  explained ;  and  I  am  not  willing  to  believe  that  either 
the  one  or  the  other  is  inconsistent  with  the  observance  of 
substantial  justice,  and  with  the  prosperity  and  rights  of 
peaceful  states. 

Although  your  lordship  has  slightly  remarked  upon  cer- 
tain recent  acts  of  the  French  government,  and  has  spoken 
in  general  terms  of  "  the  system  of  violence  and  injustice 
now  pursued  by  France,'*  as  requiring  "  some  precautions 
of  defence  on  the  part  of  Great  Britain,"  I  do  not  perceive 
that  you  deduce  any  consequence  from  these  observations, 
in  favour  of  a  perseverance  in  the  orders  in  council.  I  am 
not  myself  aware  of  any  edicts  of  France  which,  now  that 
the  Berlin  and  Milan  decrees  are  repealed,  affect  the  rights 


0  *■  '" 

A-PPENDIX.  35r>' 

of  neutral  commerce  on  the  seas.  And  you  will  yourselves 
admit  that  if  any  of  the  acts  of  the  French  government, 
resting  on  territorial  sovereignty,  have  injured,  or  shall 
hereafter  injure,  the  United  States,  it  is  for  them,  and  for 
them  only,  to  seek  redress.  In  like  manner  it  is  for  Great 
Britain  to  determine  what  precautions  of  defence  those 
measures  of  France,  which  yoti  denominate  unjust  and 
violent,  may  render  it  expedient  for  her  to  adopt.  The 
United  States  have  only  to  insist  that  a  sacrifice  of  their 
rights  shull  not  be  among  the  number  of  those  precautions. 
^  In  replying  to  that  pai^sage  in  your  letter,  which  adverts 
to  the  American  act  of  non-intercourse,  it  is  only  necessary 
to  mention  the  proclamation  of  the  President  of  the  United 
States,  of  the  2d  of  November  last,  and  the  act  of  congress 
which  my  letter  of  the  21st  of  September  communicated, 
and  to  add  that  it  is  in  the  power  of  the  British  government 
to  prevent  the  non-intercourse  from  being  enforced  against 
Great  Britain. 

Upon  the  concluding  paragraph  of  your  letter  I  will  bare- 
ly observe,  ihat  I  am  not  in  possession  of  any  document, 
which  you  are  likely  to  consider  as  authentic^  showing  that 
the  French  decrees  are  "  absolutely  revoked  upon  the  sin- 
gle condition  of  the  revocation  of  the  British  orders  in 
council;"  but  that  the  information,  which  I  have  lately 
received  fi-oni  the  American  legation  at  Paris,  confirms 
what  I  have  already  stated,  and  I  think  proved  to  your 
lordship,  that  those  decrees  are  repealed  and  have  ceased 
to  have  any  effect.  I  will  now  trespass  on  you  no  further 
than  to  suggest  that  it  would  have  given  me  sincere  plea- 
sure to  be  enabled  to  say  as  much  of  the  British  orders  in 
council  and  of  the  blockades,  from  which  it  is  impossible 
to  distinguish  them.  I  have  the  honor  to  be,  with  great 
respect  and  consideration,  my  lord,  your  lordship's  most 
obedient  humble  servant, 

(Signed)  WM.  PINKNEY, 

T/iC  most  nohk  the  Marquis  WeUcshn, 


\ddO  >  APPENDIX,    ' 

NO  V, 

Paris,  le  18  Septembre,  1807. 
J'ai  goumis  a  sa  majesty  I'empereur  et  roi,  monsieur,  les 
doutes  que  s'etait  forme  s.  e.  le  ministre  de  la  marine  et 
des  colonies,  sur  I'entendue  de  quelques  dispositions  du 
decret  imperial  du  21  Novembre,  1806,  qui  a  d^clarfe  les 
isles  Britanniques  en  6tat  de  blocus  ;  voici  queiles  sont 
les  intentions  de  sa  majeste  sur  les  points  qui  avaient  mis 
en  question. 

1.  Les  batimens  arm^s  en  guerre  peuvent-ils  en  vertu 
du  decr6t  imperial  du  21  Novembre  dernier,  saisir  sur  les 
batimens  neutres,  soit  les  propri6t^s  Anglaises,  soit  meme 
toutes  marchandises  provenant  de  manufactures  ou  du 
territoire  Anglais? 

Sa  majeste  m'a  fait  connaitre,  que,  puis  qu'elle  avait 
jug6  a  propos  de  n'exprimer  aucune  exception  dans  son 
decret,  il  n  y  avait  pas  lieu  d'en  faire  dans  I'execution  a 
regard  de  qui  que  ce  put  etre. 

2.  Sa  majeste  a  sursisu  statuer  sur  la  question  de  savoir 
si  les  armeteurs  Fran(,ais  doivent  s'emparer  des  batimens 
neutres  qui  vont  en  Angleterre,  ou  qui  en  sortent,  lors 
meme  quil  n'ont  point  a  bord  de  marchandises  An- 
glaises. 

3.  Sur  la  troisieme  question,  qui  etait  de  savoir  si  les. 
armemens  Franqais  sont  passible  de  la  retenue  ordonnee 
par  I'article  0\  du  decret  du  21  Novembre,  sa  majesty  a 
declare  que  la  disposition  de  cet  article  n'etait  susceptible 
d'aucutie  restriction,  c'est  a  dire,  que  la  retenue  doit  avoir 
lieu  sur  le  produit  de  toutes  les  confiscations  de  marchan- 
dises et  proprietes  qui  ont  6te  ou  ])ourroicnt  etre  pronon- 
cees  en  extjcution  du  decri&t,  sanst'gard  au  lieu  de  la  saisic 
ou  a  la  quality  des  saisis&an9» 


ArrENDix.  361 

Vous  voudrei^  bien>  Monsieur,  notifier  ces  decisions  au 
conspil  des  prises,  les  faire  consigner  sur  les  registres  et 
m'assurer  la  reception  de  ma  lettre. 
Recevez,  &c.  &c. 
-    Le  gd.  juge  min.  de  la  justice, 
(Signe)  REGNIER. 

Procureur  general  imperial  conseil  des  prises. 


General  AnJistrong  to  31,  De  Champagny. 

Paris,  November  12th,  iSOr. 
SIR, 

The  document  to  which  these  observations  are  pre- 
fixed will  inform  your  excellency  that  an  American  ship, 
trading  under  the  protection  of  the  laws  of  nations,  and  of 
particular  treaties,  and  suffering  shipwreck  on  the  coast  of 
France,  has  recently  been  seized  by  his  majesty's  officers, 
and  adjudged  by  his  council  of  prizes  as  follows,  viz  : 

"  Our  council  puts  at  liberty  the  American  vessel,  the 
Horizon,  shipwrecked  the  30th  of  May  last,  near  Morlaix, 
and  consequently  orders,  that  the  amount  arising  from  the 
sale  legally  made  of  the  wreck  of  the  said  vessel,  together 
with  the  merchandize  of  the  cargo,  which,  according  to  an 
estimate  made  in  presence  of  the  overseers  of  the  adminis- 
trations of  marine  and  custom-house,  shall  have  been  ac- 
knowledged not  to  proceed  from  English  manufactures,  nor 
from  English  territory,  shall  be  restored  to  captain  Mac 
Clure,  without  deducting  any  other  expenses  than  those  re- 
lative to  the  sale. 

And  with  regard  to  the  other  merchandize  of  the  cargo, 
which,  from  the  result  of  the  said  estimate,  shall  be  ac- 
knowledged to  come  from  manufactures  or  English  territo- 
ry, by  virtue  of  the  fifth  article  of  the  decree  of  the  1st 
November,  1806,  they  shall  be  confiscated  for  the  use  of 
the  state  ;  the  whole  to  be  sold  by  the  forms  prescribed  in 
the  regulations :  and  the  application  of  the  product  to  be 


;M., 


f 


^t>2  ATTEND  IX. 

made  In  conformity  to  the  arrangements  of  the  said  de- 
cree, deduction  being  made  for  the  expense  of  saving  the 
goods,  and  that  of  the  support  of  the  crew,  until  the  day 
that  the  captain  shall  receive  the  notification  of  the  present 
decision."  '"' 

The  reasons  upon  which  this  decision  is  founded  are  at 
once  so  new  and  so  alarming  to  the  present  friendly  rela- 
tions of  the  two  powers,  that  I  cannot  but  discuss  them 
with  a  freedom  in  some  degree  proportioned  to  mv  sense 
of  their  novelty  and  importance. 

"  Considering,"  says  the  council,  "  1st.  That  the  neu- 
trality of  the  ship  and  cargo  were  sufficiently  established, 
the  whole  ought  to  be  restored,  (agreeably  to  the  provisions 
of  the  convention  of  the  30th  of  September,  1800,)  provided 
no  meixhandize  of  English  origin  had  been  found  in 
her,  and  of  course  that  she  had  not  been  brought  with- 
in the  limits  of  the  imperial  decree  of  the  21st  of  Novem^ 
feer,  1806." 

'  Here  is  an  open  and  unqualified  admission,  that  the  ship 
was  found  within  the  rules  prescribed  by  the  convention  of 
ISOC) ;  that  according  to  these  rules,  her  cargo  and  herself 
ought  to  have  been  restored,  and  that  such  would  have 
been  the  fact,  but  for  the  operation  of  the  decree  of  the  21st 
of  November,  1 806. 

In  tlie  letter  your  e»xcellency  did  me  the  honour  to  write 
to  me  on  the  7ih  of  October  last,  you  thought  it  "  easy  to 
reconcile  the  obligations  of  this  decree  with  the  preserva- 
tion of  those  arising  from  treaties."  It  was  not  for  me  to 
examine  the  means  by  which  this  reconciliation  could  be 
effected  ;  they,  no  doubt,  fully  existed,  and  yet  exist  in  his 
niaiesty's  good  pleasure  ;  and,  taking  for  granted  this  fact, 
I  saw  in  the  opinion  nothing  but  proofs  of  friendly  disposi- 
tions and  pledges  that  these  were  not  to  be  either  wanionl)' 
dcstro\'ed  or  diminished.  IIow  inauspicious,  however,  to 
its  aulhoritv  and  llio  consolations  derived  from  it,  is  this 
recent  act  of  ilic  council  of  pi.-iScs  ?  ;ui  uct  \vhich  explicitly 


;* 


*■ 

■^ 


1 

Appexdix.  i  303 

Acknowledges  tlic  opposite  characters  and  cotuflicting  in- 
junctiongf^of  these  two  instrumeats  ;  and  which  of  course 
draws  after  it  considerations  the  most  serious  to  the  gov- 
ernment of  the  United  States. 

The  second  reason  of  the  council  is, 

*' That  the  decree  declaring  (British)  merchandize  good 
prize,  had  principally  in  view  captures  made  on  the  high 
seas  ;  but  that  the  question,  whether  shipwrecked  goods 
ought  to  be  restored  or  confiscated,  having  always  been 
judged  under  the  14ih  article  of  the  regulation  of  the  26th 
of  July,  1778,  and  according  to  their  character,  (which 
might  have  rendered  lawful,  or  have  even  commended 
their  seizure  at  sea,)  there  is  no  reason  to  introduce  in  this 
case  any  new  distinction,  wiiich,  however  philanthropic  it 
may  appear,  has  not  as  yet  been  adopted  as  a  rule  by  any 
maritime  nation."  , 

The  doctrine  resisted  in  this  passage,  and  which  incul- 
cates the  duty  of  extending  protection  to  the  unfortunate, 
is  not  new  to  his  majesty's  council  of  prizes.  They  have 
themselves  consecrated  it  by  their  decision  of  the  5th  of 
March,  ISOO.  By  that  decision  they  restored  an  enemy ^s 
ship,  (the  Diana)  on  the  sing-Ie  reason,  that  "  she  had  been 
compelled  to  enter  a  French  port  by  stress  of  weather  ^^  "  I 
should  certainly  fail,"  says  the  attorney  general,  "  in  res- 
pect to  myself  and  to  the  council,  before  wliom  I  have  the 
honour  to  represent  the  government,  were  I  not  to  viain- 
tain  a  principle  consecrated  bi/  ot/r  larvs,  ayid  by  those  of  all 
nations.  In  all  circumstances  let  the  loyaltv  of  the  French 
government  serve  as  the  basis  of  your  decisif^ns.  Prove 
yourselves  at  once  generous  and  just ;  your  enemies  will 
know  and  respect  your  magnanimity."  Such  was  the  prin- 
ciple adopted  by  the  council  in  the  year  1800,  and  in  the 
case  of  an  enemy's  ship,  yet  we  are  now  told,  that  this  very 
principle,  so  honourable  to  the  court,  to  the  nation,  and  to 
human  nature,  is  utterly  unknown  to  all  maritime  people. 
And  on  v-'hat  occasion  do  we  hear  this  ?  when  an  enemy's 


% 


364  AprEKDix.- 


ship  Is  again  thrown  on  the  French  cSast?  jE^o,  It  has  heer! 
resel-ve J  for  the  wreck  of  a  neutral  and  friendly  vessel  ? 
for  a  ship  of  the  United  States  !  It  is  not  denied,  that  had 
this  ship  escaped  the  rocks  and  made  the  port  of  Morlaix^ 
the  only  inhospitality  to  which  she  v/ould  have  been  expo- 
sed, (under  the  most  rigorous  interpretation  of  the  law  in 
question,)  would  have  been  that  of  being  ordered  again  to 
sea.  Has  then  the  misfortune  of  shipwreck  so  far  altered 
her  condition  as  to  expose  her  to  the  injury  of  confiscation 
also  ?  and  is  this  among  the  principles  which  the  defender 
p{  maritime  rights  means  to  consecrate  by  his  power  and 
his  wisdom  ?  It  is  impossible^ 

The  third  reason  of  the  council  is,  "  That  the  applica- 
tion of  the  5th  article  aforesaid,  in  as  far  as  it  concerns  the 
American  and  other  nations,  is  the  result  both  of  the  gen- 
eral expressions  of  that  vei'y  article,  and  of  the  communica- 
tion recently  made  by  his  excellency,  the  grand  judge,  con= 
cerning  the  primitive  intention  of  the  sovereign." 

This  reason  will  be  found  to  be  substantially  answered  iii 
my  reply  to  reason,  No.  5,  of  the  counciL  It  will  be  seen, 
that  the  opinion  given  here,  that  "  the  application  of  arti- 
cle 5,  of  the  imperial  decree,  to  American  commerce,  is 
the  result  of  the  general  expressions  of  that  very  ar- 
ticle," was  not  the  opinion  of  the  council,  on  the  5th  of 
March  last,  v.'hen  they  judged  the  case  of  the  Hibernia; 
they  then  declared,  in  totidem  verbis,  that  the  decree  "  said 
nothing  of  its  own  influence  on  the  convention  of  1800,  be- 
tween the  United  States  and  France. 

The  fourth  reason  of  the  council  is,  "  that  the  expedition 
in  question  having  certainly  been  made  with  full  knowledge! 
of  the  said  decree,  no  objection  can  be  drawn,  with  any  pro- 
priety, from  the  general  rules  forbidding  a  retrospective  ac-* 
tion,  nor  even,  in  this  particular  case,  from  the  posterior 
date  of  the  aqt,  in  wliicli  the  sovereign  decides  the  ques- 
tion, since  th^t  act  sprung  from  his  supreme  wisdom,  no? 


t    ^'- 


APPENDIX.  -h  305 

ab  ail  iuterpetraiion  of  a  doubtful  point,  but  as  u  declaration 
of  an  anteriol^  and  positive  disposition." 

A  distinction  is  here  attempted  to  be  taken,  between  the 
interpretation  of  a  doubtful  point,  J^id  the  declaration  of  an 
anterior  and  positive  rule.  This  distinction  cannot  be 
maintained  ;  for  if  the  rule  had  been  positive,  there  would 
have  been  no  occasion  for  the  declaration.  Neither  the 
minister  of  marine,  nor  the  council  of  prizes  could  have 
had  any  doubts  on  the  subject;  the  execution  of  the  decree 
would  have  been  prompt  arid  peremptory ;  nor  would  a 
second  act,  on  the  part  of  his  majesty,  after  the  lapse  of 
twelve  months,  have  been  necessary  to  give  operation  to 
the  first.  Need  I  appeal  to  your  excellency's  memory,  for 
the  facts  on  which  these  remarks  turn  ?  You  know  that 
doubts  did  exist — you  know  that  there  was,  under  them^ 
much  hesitation  in  pronouncing.  You  knov/  that  as  late  as 
the  9th  of  August  I  sought  an  explanation  of  the  decree 
in  question,  and  that  even  then  your  excellency,  (who  was 
surely  a  competent  and  legitimate  organ  of  his  majesty,) 
did  not  think  yourself  prepared  to  give  it :  the  conclusion 
is  inevitable.  His  majesty's  answer,  transmitted  to  the 
court  of  prizes  on  the  18th  of  September  last,  through  the 
medium  of  the  grand  judge,  was  in  the  nature  of  an  inter- 
pretation, and  being  so,  could  not,  without  possessing  a 
retro-active  quality,  apply  to  events  many  months  anterior 
in  date  to  itself. 

The  fifth  reason  of  the  council,  and  the  last  which  enters 
into  my  present  view  of  the  subject,  is,  "  that  thotigh  one 
of  the  principal  agents  of  his  majesty  had  given  a  contrary 
opinion,  of  which  the  council  had  at  no  period  partaken,  this 
opinion  being  that  of  an  individual,  could  not,  wliatever  con- 
sideration its  author  may  merit,  balance  the  formal  declara- 
tion given  in  the  name  of  his  majesty  himself;  and  that, 
ll  if  the  communication  of  this  opinion  had,  as  is  alleged,  giv- 
en room  to,  and  served  as  a  basis  for  many  American 
shipments,  and  particularly  of  the  one  in  question,  this  cir- 
47 


# 


366  APPENDIX. 

.!.'*-  T' 

cumstance  which  may  call  for  the  iudulgi;tfte  of  his  majes- 
ty, in  a  case  in  which  the  confiscation  is  entirely  to  the  ad- 
vantage of  the  state,  does  not  prevent  a  council  rigid  in  its 
duty,  to  pronounce  in  conformity  to  the  decree  of  the  21st 
of  November,  and  of  the  declaration  which  followed  it." 

It  would  appear  from  this  paragraph  that  not  finding  it 
easy  to  untie  the  knot,  the  council  had  determined  to  cut  it. 
Pressed  by  the  fact,  that  an  interpretation  of  the  decree  had 
been  given  by  a  minister  of  his  majesty,  specially  charged 
with  its  execution,  they  would  now  escape  from  this  fact 
and  from  the  conclusions  to  \Vhich  it  evidently  leads  by  al- 
leging, 

1st.  That  at  no  time  had  the  council  partaken  of  the  opin- 
ion given  by  the  minister  :  and, 

2d.  That  this  opinion  being  that  of  an  individual  could 
not  possess  either  the  force  or  the  authority  of  one  truly 
ministerial.  ^ 

It  appears  to  me,  as  I  think  it  will  appear  to  your  excel-  " 
Ifency,  that  the  council  have,  in  these  statements,  been  less 
correct  than  is  usual  to  them  on  similar  occasions.  If,  as 
they  now  assert,  they  have  never  partaken  of  the  minister's 
opinion — if  they  have  never  even  hesitated  on  the  question, 
whether  the  decree  of  November  did,  or  did  not,  derogate 
from  the  treaty  of  1800 — Wh}-,  I  ask,  suspend  the  Ameri- 
can cases  generally  ?  or  v.hy  decide  as  they  did  in  the  case 
of  the  Hibernia?  If  I  mistake  not,  we  find  in  this  case 
the  recognition  of  the  very  principle  laid  down  by  the  min 
ister  of  ;;  arine.  That  officer  says,  "  in  my  opinion  the 
November  decree  does  not  work  any  change  in  the  rules  at 
present  observed  with  respect  to  neutral  commerce,  and  con 
sequently  none  in  the  convention  of  the  8th  Vandemaire- 
y«ar  nine."  And  what  says  the  council,  "  admitting 
that  this  part  of  the  cargo,  (the  rum  and  ginger)  was  of 
British  origin^  the  disj)ositions  of  the  November  decree^ 
{which,  contain  nothing-  with  regard  to  their  oxvn  injiuencc 
over  the  convention  of  the  Bth  Vandemaire.,  year  nim^  evi- 


APPENDIX.  367 

dcntly  cannot  be  ar^fed to  a  ship  leaving  America  on  the 
sixth  of  the  same  month  of  November  ;  and  of  course  can- 
not have  authorised  her  capture  in  the  moment  she  was  en- 
tering the  neutral  port  of  her  destination."  We  have  here 
three  distinct  grounds  of  exemption  from  the  effects  of  the 
November  decree, 

1st.  The  entire  silence  of  that  decree  with  regard  to  its 
own  influence  over  the  convention  of  1800. 

2d.  The  early  period  at  which  the  ship  left  the  United 
States.     And, 

Sd.  The  neutral  character  of  the  port  to  which  she  was 
destined.  If  such,  Sir,  were  the  principles  admitted  by  the 
council  on  the  5th  of  March  last,  with  what  correctness  can 
it  be  now  said,  "  that  at  no  period  have  they  ^jartaken  of 
the  opinion  of  the  minister  ?'' 

The  second  fact  asserted  by  the  council  is,  that  the  inter= 
pretation  of  the  decree  in  question,  given  on  the  24th  of 
December,  1806,  w^s  private  not  publ  c— or  in  other  wordsi 
that  it  was  the  interpretation  of  the  man^  not  that  of  the 
minister — and  as  such,  cannot  outweigh  the  more  recent 
declaration  coming  directly  from  his  majesty  himself. 

On  the  comparative  weight  of  these  declarations  I  shall 
say  nothing,  nor  shall  I  do  more  to  repel  the  first  part  of 
the  insinuation,  fthat  the  mi7i'Ster'*s  declaration  was  that 
only  of  the  indimdnal) — than  to  submit  to  your  excel- 
lency my  letter  of  the  20th  of  December,  1806,  claiming 
from  that  minister  an  official  interpretation  of  the  decree  in 
question,  and  his  answer  of, the  24th  of  the  same  month, 
giving  to  me  the  interpretation  demanded. 

To  your  excellency,  v/ho  as  late  as  the  21st  of  August 
last,  considered  the  minister  of  marine  as  the  natural  orgaa 
of  his  majesty's  will,  in  whatever  regarded  the  decree  afore- 
said, and  who  actually  applied  to  him  for  information  rela- 
'  ting  to  it,  this  allegation  of  the  council  of  prizes  and  the 
reasoning  founded  upon  it,  cannot  but  appear  very  extraor- 
4ina,ry,  and  will  justify  me^  in  requesting  that  his  majesty 


ft 


Ife^-  % 


'* 


3(58  APPENDIX.       ^^, 

may  be  moved  to  set  aside  the  decision  in  question,  on  the 
ground  of  error  in  the  opinion  of  the  council. 

If  in  support  of  this  conclusion  I  have  drawn  no  argu- 
ments from  the  treaty  of  1800,  nor  from  the  laws  of  nations, 
your  excellency  will  not  be  at  a  loss  to  assign  to  this  omis- 
sion its  true  cause.  It  would  surely  have  been  a  useless 
formality  to  appeal  to  authorities,  not  only  practically,  but 
even  professedly  extinct.  In  the  letter  of  the  minister  of 
justice  of  the  18th  September,  we  are  told  by  his  majesty 
himself,  that  ^'  since  he  had  not  judged  proper  to  make  any 
exception  in  the  letter  of  his  decree,  there  was  no  room  to 
'  make  any  in  its  execution,"  and  in  the  report  of  your  ex- 
cellency's predecessor,  of  the  20th  November  1806,  we 
have  these  memorable  words  : 

"  England  has  declared  those  places  blockaded,  before 
nhich  she  had  not  a  single  ship  of  war.  She  has  done 
more,  for  she  has  declared  in  a  state  of  blockade,  places, 
.which  all  her  assembled  forces  were  incapable  of  blockad^- 
ing — immense  coasts,  and  a  vast  empire.  Afterv/ards, 
drawing  from  a  chimerical  right  and  from  an  assumed 
fact  the  consequence  that  she  might  justly  make  her  prey 
of  every  thing  going  to  the  places  laid  under  interdiction, 
by  a  simple  declaration  of  the  British  admiralty,  and  of 
every  thing  arising  therefrom,  and  carrying  this  doctrine 
into  effect,  she  has  alarmed  neutral  navigators,  and  driven 
them  to  a  distance  from  ports  whither  their  interests  at- 
tracted them,  and  which  the  law  of  nations  authorised  them 
to  frequent.  Tlius  it  is,  that  she  has  turned  to  her  own 
profit,  and  to  the  detriment  of  Europe,  but  more  particular- 
i)'  of  France,  the  audacit)''  with  which  she  mocks  at  all 
rights  and  insults  even  reason  itself.  Against  a  power 
which  forgets  to  such  a  pitch  all  ideas  of  justice,  and  all 
humane  sentiments,  rvhat  can  be  done  but  to  forget  them  for 
an  instant  cne^s  self?''''  Words  cannot  go  further  to  shew  i^ 
the  extinguished  authority  in  the  one  case,  of  the  treaty  sub- 
sisting between  the  United  States  and  his    imperial    ma- 


.*'  Am. 


t^' 


APPENDIX.  369 

jesty,  and  in  the  other,  of  the  law  of  nations :  to  appeal 
to  them  therefore,  would  be  literally  appealing  to  the 
dead. 

Accept,  Sir,  Sec.  Sec. 

(Signed)  JOHN  ARMSTRONG. 

His  Excellency,  the  Minister 
of  Foreign  Affairs. 


m^t  No.  VI. 

RULES    OF    THE    DISTRICT    COUKT    FOR    THE  SOUTHERX 
i)ISTRICT    OF    NEW-YORK    IN    PRIZE    CAUSES. 

1st.  There  shall  be  issued  under  the  seal  and  authority 
of  this  court,  ccmmissions  to  such  persons  as  the  court 
shall  thinkiflt,  appointing  them  commissioners  to  take  the 
examinations  of  witnesses  in  prif^e  causes  in  prepai-atory, 
on  the  standing  interrogatories  which  have  been  settled  and 
adopted  by  this  court,  and  to  discharge  such  other  duties 
in  relation  to  ships  or  vessels,  or  property  brought  into 
the  district  of  New-York,  as  prize,  as  shall  be  designated, 
by  the  said  commissions,  and  the  rules  and  orders  of  this 
court. 

2d.  The  captors  of  any  property  brought  into  the  dis- 
trict of  New- York,  as  prize,  or  some  one  in  their  behalf, 
shall  without  delay,  give  notice  to  one  of  the  commission- 
ers aforesaid,  of  the  arrival  of  such  property,  and  of  the 
place  where  the  same  may  be  found. 

3d.  That  upon  the  receipt  of  such  notice,  the  commis- 
sioner or  commissioners  shall  repair  to  the  place  where  the 
said  prize  property  then  is,  and  if  the  same  be  a  ship  or 
vessel,  or  if  the  property  be  on  board  a  ship  or  vessel,  he 
shall  cause  the  said  ship  or  vessel  to  be  safely  moored  in 
sufficient  depth  of  water,  or  in  soft  ground,  so  that  the  ship 
may  receive  no  damage.     The  said  commissioner  or  com- 


m 


370  APPENDIX. 

mis  >Ioners  shall  then  take  from  the  captors  or  others,  infor- 
mation of  the  arrival  of  the  captured  ship  or  vessel,  or  pro- 
perty, and  of  the  time  when  the  same  was  brought  into  the 
district.  That  the  said  commissioner  or  commissioners, 
in  case  the  prize  be  a  ship  or  vessel,  shall  examine  whether 
bulk  has  been  broken,  and  if  it  be  found  ^hat  bulk  has  been 
broken,  the  said  commissioner  or  commissioners  shall  take 
information  upon  what  occasion,  or  what  cause  the  same  was 
done.  If  the  property  captured  be  not  a  ship  or  vessel,  or  in 
a  ship  or  vessel,  the  commissioner  or  commissioners  shall  exv 
amine  the  chests,  packages,  boxes  or  casks  containing  ihe  sub- 
ject captured,  and  shall  ascertain  whether  the  same  has  been 
opened,  and  upon  what  occasion  the  same  were  opened,"and 
shall  in  every  case,  examine  whether  any  of  the  property 
originally  captured  has  been  secreted  or  taken  away  subse- 
quently to  the  capture.  And  in  every  case,  the  commis- 
sioner, before  he  leaves  the  captured  property,  shall  secure 
the  same  by  se^s  vipon  the  hatches,  doors,  chests,  bales^, 
boxes,  casks  or  packages,  as  the  case  may  require,  so  that 
they  cannot  be  opened  without  breaking  the  said  seals,  and 
the  said  seals  shall  not  be  broken,  or  the  property  removed, 
much  less  unladened  from  any  vessel,  unless  by  special  or- 
der of  this  court,  excepting  only  in  cases  of  fire  or  tem- 
pest, or  of  absolute  necessity.  If  the  captured  property  be 
not  a  vessel,  or  on  board  a  vessel,  the  commissioner  or 
commissioners  shall  take  a  detailed  account  of  the  particu^ 
lars  thereof,  and  shall  cause  the  same  to  be  deposited  un- 
der seals  as  aforesaid,  in  a  place  of  safety,  there  to  abide 
the  order  or  decree  of  this  court. 

4th.  If  no  notification  shall  within  reasonable  time  have 
been  given  by  the  captors,  or  by  any  person  on  their  be- 
half, of  any  property  which  may  be  brought  as  prize  within 
this  district,  and  the  commissioners,  or  either  of  them,  shall 
become  informed  thereof  by  any  means,  it  shall  be  the  duty 
of  the  s^id  commissioners,  or  one  of  them,  to  repair  to  the 


m. 


m 


APPENDIX.  371 

/   ,     •■ 

place  where  such^roperty  is,  and  to  proceed  in  respect  to 
the  same,  as  if  notice  had  been  given  by  the  captors. 

5th.  The  captors  shall  deliver  up  to  the  commissioner 
or  commissioners,  when  he  or  they  shall,  conformably  to 
the  foregoing  rule,  repair  to  the  place  where  such  cap  ured 
property  is,  or  at  such  other  time  as  the  said  commission- 
ers, or  either  of  them,  shall  require  the  same,  all  such  pa- 
pers, passes,  sea-briefs,  charters,  bills  of  lachng,  cockets, 
letters  and  other  documents  and  writings  as  shall  have  been 
found  on  board  the  captured  ship,  or  which  have  any  refe- 
rence to  or  connexion  with  the  captured  property,  and 
which  are  in  the  possession,  custody  or  power  of  the  cap- 
tors. The  said  papers,  documents  and  writings  shall  be 
regularly  marked  and  numbered  bv  the  said  commissioner 
or  commissioners,  and  the  captor,  chief  officer  or  some 
other  person  who  was  present  at  the  taking  of  the  prize, 
and  saw  that  such  documentr,,  papers  and  writings  were 
found  with  the  prize,  must  make  a  deposition  before  the 
said  commissioner  or  commissioners,  who  are  hereby  au- 
thorised to  take  the  same,, that  they  are  delivered  up  to 
the  said  commissioner  or  commissioners  as  they  were 
found  or  received,  without  any  fraud,  subduction  or  em- 
bezzlement. And  if  any  documents,  papers  or  writir4gs 
Relative  to  or  connected  with  the  captured  property  are 
missing  or  wanting  the  deponent  shall  in  his  said  deposi- 
tion, account  for  the  same  according  to  the  best  of  his 
knowledge,  informaHon  and  belief.  And  the  deponent 
must  further  swear,  that  if  at  any  time  thereafter,  and  be- 
fore the  final  condemnation  or  acquittal  of  the  said  proper- 
ty, any  further  or  other  papers  relating  to  the  said  captu- 
ed  property  shall  be  found  or  discovered,  cc  the  knowledge 
of  the  ^deponent,  they  shall  also  be  delivered  up,  on  infor- 
mation thereof  given  to  the  commissioners  or  to  this  court: 
which  deposition  shall  be  reduced  to  writing  by  the  com- 
missioners, and  shall  be  transmitted  to  the  clerk  of  the 
court  as  herein  after  mentioned. 


4 


37*^  Apr£:\i>i\, 


6th.  That  when  the  said  documents,  pifiper 3  and  writhigs 
are  delivered  to  a  commissioner,  he  shall  i*etaui  the  same 
till  after  the  examination  in  preparatorio  shall  have  been 
made  by  him,  as  is  hereafter  provided,  and  then  he  shall 
transmit  the  same  with  the  same  affidavit  in  relation  there- 
to, the  preparatory  examinations,  and  the  information  he 
may  have  received  in  regard  to  the  said  captured  property, 
under  cover  and  under  his  seal  to  this  court,  addressed  to 
the  clerk  thereof,  and  expressing  on  the  said  cover  to  what 
captured  property  the  documents  relate,  or  who  claims  to 
be  the  captors  thereof,  or  from  whom  he  received  the  in- 
formation of  the  capture,  which  said  cover  shall  not  be 
opened  without  the  order  of  this  court. 

7th.  That  within  three  days  after  the  captured  property 
shall  have  been  brought  within  the  jurisdiction  of  this 
court,  the  captor  shall  produce  to  the  commissioner  or 
commissioners,  three  or  four,  if  so  many  there  be,  of  the 
company  or  persons  v.'ho  were  captured  with  or  who  claim 
the  said  captured  property,  and  in  case  the  capture  be  a 
vessel,  the  master,  mate  or  supercargo  must  always  be  two 
in  order  that  they  may  be  examined  by  the  said  commis- 
sioner or  commissioners  in  preparatory  upon  the  standing 
interrogatories. 

8th.  That  each  commissioner  appointed  or  to  be  p- 
pointcd  pursuant  to  the  rules  of  this  court,  for  taking  ex- 
aminations in  preparatorio,  shall  be  furnished  with  a  print- 
ed copy  of  these  rules,  and  of  the  standing  interrogatories 
certified  by  the  clerk,  and  in  the  examination  of  witnesses 
in  preparatorio,  the  commissioner  or  commissioners  shall 
use  no  other  interrogatories  but  the  said  standing  inter- 
rogatories, unless  special  interrogatories  are  directed  by 
this  court :  nevertheless,  they  may  explain  at  all  times  to 
ii  witness  when  it  may  be  necessary,  any  of  the  said  inter- 
rogatories. They  shall  write  down  the  answer  of  eyery 
witness  separately  to  each  interrogatory,  and  not  to  seve- 
ral interrogatories  together.     Whqj^i  a  witness  declares  he 


APPENDIX.  373 

cannot  answer  to  any  interrogatory,  the  commissioner  or 
commissioners  shall  admonish  the  witness,  that  by  virtue 
of  his  oath  taken  to  speak  the  truth,  and  nothing  but  the 
truth,  he  must  answer  to  the  best  of  his  knowledge,  or 
when  he  does  not  know  absolutely,  then  to  answer  to  the 
best  of  his  belief  concerning  any  one  fact. 

9th.  That  the  examination  of  every  witness  shall  h?.  be- 
gun, continued  and  finished  in  the  same  day,  and  not  at 
different  times.  That  copies  of  the  standing  interrogatories 
shall  not  be  returned  by  the  commissioner  or  commission- 
ers with  the  examinations,  but  it  shall  be  sufficient  for  the 
answers  of  the  witnesses  to  refer  to  the  standing  interroga- 
tories by  corresponding  numbers :  that  before  any  witness 
shall  be  examined  in  the  standing  interrogatories,  the  com- 
missioners, or  one  of  them,  shall  administer  to  him  an 
oath  in  the  following  form  :  "  You  shall  true  answer  make 
to  all  such  questions  as  shall  be  asked  of  you  on  these  in- 
terrogatories, and  therein  j'ou  shall  speak  the  whole  truth, 
and  nothing  but  the  truth,  so  help  you  God."  If  the  wit- 
ness is  conscientiously  averse  to  swearing,  an  affirmation 
to  the  same  effect  shall  be  administered  to  him. 

10th.  That  the  examination  of  each  witness  on  the  stand- 
ing interrogatories,  shall  be  retui-ned  according  to  the  fol- 
lowing form.  Deposition  ef  A.  B.  a  witness  produced, 
sworn  and  examined  in  preparatorio  on  the  day 

of  in  the  year  at  the  house  of 

situated  in  the  city  of  on  the  standing 

interrogatories  established  by  the  district  court  of  the  Uni- 
ted States,  for  the  district  of  New- York.  The  said  wit- 
ness having  been  produced  for  the  purpose  of  such  exa- 
mination by  C.  D.  in  behalf  of  the  captors  of  a  certain 
ship  or  vessel,  called  the  (or  of  certain  goods, 

■U'ares  and  merchandize  as  the  case  may  be.) 

1st.   To  the  first  interrogatory,  the  deponent  answers 
that  he  was  born  at  &c. 

48 


374  '  APPENDIX. 

2d.  To  the  second  interrogatory,  the  deponent  answers 
that  he  was  present  at,  the  time  of  the  taking,  &c. 

That  when  the  interrogatories  have  been  all  answered 
by  a  witness,  he  shall  sign  his  depositions,  and  the  commis- 
sioner or  commissioners  shall  put  a  jurata  thereto  in  the 
usual  form,  and  subscribe  his  name  to  the  same. 

11th.  That  no  person  having  or  claiming  any  interest  in 
the  captured  property,  or  having  anj'  interest  in  any  ship 
having  letters  of  marque  or  commissions  of  war,  shall  pre- 
sume to  act  as  a  commissioner.  Nor  shall  a  commissioner 
presume  to  act  tither  as  proctor,  advocate  or  counsel  either 
for  captors  or  claimants  in  any  prize  cause  whatever. 

12th.  If  the  captain  or  prize  master  neglect  or  refuse  to 
give  up  and  to  deliver  to  the  commissioner  or  commission- 
ers, the  documents,  pr-pers  and  v/ritings  relating  to  the 
captured  property,  according  to  the  foregoing  rule,  or  re- 
fuse or  neglect  to  produce,  or  cause  to  be  produced,  wit- 
nesses to  be  examined  in  preparatory,  within  three  days 
after  the  arrival  of  the  captured  property  within  the  juris- 
diction of  this  court,  or  shall  otherwise  unnecessarily  delay 
the  production  of  the  said  documents,  papers  or  writings, 
the  commissioners,  or  one  of  them  nearest  to  the  place 
where  the  captured  property  may  be,  or  before  whom  the 
examination  in  preparatorio  may  have  been  already  begun, 
shall  admonish  in  writing  the  delinquent  to  produce  the 
said  documents,  papers  and  writings,  and  to  bring  forward??^ 
his  witnesses,  and  if  he  shall  still  neglect,  or  unnecessarily 
delay  so  to  do,  such  commissioner  or  commissioners  shall 
certify  the  same  to  this  court,  that  such  proceedings  may 
thereupon  be  had  as  justice  may  require. 

13th.  If  within  twenty-four  hours  after  the  arrival  with- 
in this  district,  of  any  captured  vessel,  or  of  any  property 
taken  as  a  prize,  the  captors  or  their  agent  shall  not  give 
notice  to  a  commissioner,  pursuant  to  the  provisions  herein 
made,  or  shall  not,  two  days  after  such  notice  given,  pro- 
duce witnesses  to  be  examined  in  preparatorio,  then  any 


APPENDIX.  J/CJ 

person  claiming  the  captured  property  and.  restoration 
thereof,  may  give  nouce  to  the  commissioners  as  aforesaid, 
of  the  arrival  of  the  said  captured  property,  and  thereupon 
such  proceedings  may  be  had  by  the  commissioners  in  res- 
pect to  the  said  property,  and  relative  to  the  documents, 
papers  and  writings  connected  with  the  said  capture,  which 
the  claimant  may  have  in  his  possession,  custody  or  power, 
and»  relative  to  the  examination  of  witnesses  in  preparato- 
Yio  as  near  as  may  be,  as  is  before  provided  for  cases  where 
the  captors  shall  give  notice  and  examine  in  preparatorio-> 
And  the  said  claimant  may  in  such  cases  file  his  libel  for 
restitution,  and  proceed  thereon  according  to  the  rules  and 
practice  of  this  court. 

14th.  That  as  soon  as  may  be  convenient  after  the  cap- 
tured property  shall  have  been  brought  v/ithin  the  jurisdic- 
tion of  this  court,  a  libel  may  be  filed  and  a  monition  shall 
thereupon  be  issued,  and  such  proceedings  shall  be  had  as 
are  provided  by  the  89th  and  90th  sections  of  the  act  en- 
titled. An  act  to  regulate  the  collection  of  duties  on  im- 
ports and  tonnage  in  cases  of  vessels,  goods,  wares  and 
merchandize  which  become  forfeited  in  virtue  of  said  act. 

15th.  That  in  all  cases  by  consent  of  captor  and  claim- 
ant, or  upon  attestation  exhibited  upon  the  part  of  th,6  claim- 
ant only,  without  consent  of  the  captor,  that  the  cargo  or 
part  thereof  is  perishing  or  perishable,  the  claimant  specl-^ 
fying  tlie  quantity  and  quality  of  the  cargo,  may  have  the'' 
same  delivered  to  hirn  on  giving,  bail  to  answer  the  value 
thereof  if  condemned,  and  further  to  abide  the  event  of  the 
suit,  such  bail  to  be  approved  of  by  the  captor,  or  other- 
wise the  persons  who  give  security,  swearing  themselves 
to  bdseverally  and  truly  worth  the  sum  for  which  they  give 
securitj^  But  if  the  parties  cannot  agree  upon  the  value 
of  the  cargo,  a  decree  or  coipmission  of  appraisement  may 
issue  from  the  court  to  ascertain  the  value.  In  cases  when 
there  is  no  claim,  an  affidavit  being  exhibited  on  the  part 
of  the  captor,  of  suclll perishing  or  perishable  cargo,  speci- 

Jf'  -'-aiCZ*. 


37t>  appemjix, 

fying  the  quantity  and  quality  thereof,  the  captor  may  have 
a  decree  or  commission  of  appraisement  and  sale  of  such 
cargo,  and  bring  in  the  proceeds  into  court  in  view  of  any 
claim,  virtually  to  abide  further  orders. 

16th.  That  the  name  of  each  cause  be  entered  by  the 
clerk  upon  the  list  for  hearing  in  their  order,  according  to 
the  dates  of  the  returns  of  the  monitions,  and  the  lists  are 
to  be  constantly  hung  up  in  the  court  room  and  clerk's  of- 
fice for  public  inspection.  Proviso  :  This  order  of  hear- 
ing is  to  be  invariably  observed,  unless  in  any  cause  of 
great  national  importance,  the  judge  shall  find  it  necessary 
to  direct  the  hearing  of  any  particular  cause  immediately. 

17th.  That  in  all  cases  -where  a  decree  or  commission  of 
appraisement  and  sale  of  any  ship  and  cargo,  or  either  of 
them  shall  have  issued,  that  no  question  respecting  the  ad- 
judication of  such  ship  and  goods  or  either  of  them,  or  as 
to  freight  or  expenses,  shall  be  heard,  till  the  said  decree 
or  commission  shall  be  returned  with  the  account  of  sales, 
and  the  proceeds  according  to  such  accompt  of  sales  paid 
into  the  clerk,  to  abide  the  order  of  the  court  in  respect 
thereto. 

18th.  That  after  the  examinations  taken  in  preparatory 
in  the  standing  interrogatories,  are  brought  into  the  regis- 
try, and  the  monition  has  issued,  no  further  or  other  ex- 
aminations upon  the  said  interrogptories  shall  be  taken,  or 
affidavits  received  in  the  office  without  the  special  direc- 
tions of  the  judge,  upon  application  made  in  open  court. 

19th.  That  there  shall  be  no  invocation  of  papers  from 
one  captured  ship  to  another,  without  the  special  permis- 
sion of  the  judge,  at  least  two  days  previous  to  the,  cause 
coming  on,  in  which  such  papers  are  intended  to  be  used, 
founded  on  an  affidavit  on  the  part  of  the  captors,  that 
such  papers,  in  the  opinion  of  his  counsel,  are  material  and 
necessary  ;  it  being  understood  that  the  case  of  the  ship 
from  whence  the  invocation  is  proposed  to  be  made,  shall 
have  been  previously  heard,  and  its  papers  in  possession  ot 


• 

* 


APPENDIX.  377 

'-■^ 

the  court ;  and  that  necessary  extracts  from  such  papers 
should  only  be  used.  But  as  the  Intention  of  the  captor  is 
to  discover  fx-aud,  the  party  who  hath  an  interest  in  con- 
fusing evidence  and  in  fraudulently  putting  different  pa- 
pers on  board  different  ships,  the  claimants  are  precluded 
from  invoking,  but  may  argue  from  the  papers  invoked  by 
the  captors. 

20th.  That  in  all  motions  for  commissions  and  decrees 
of  appraisement  and  sale,  the  time  shall  be  specified,  with- 
in which  it  is  prayed  that  the  commissions  or  decrees  shall 
be  made  returnable. 

21st.  That  the  commissioner  or  commissioners  make  re- 
gular returns  on  the  days  in  which  their  commission  or 
decrees 'are  returnable,  stating  the  progress  that  has  been 
made  in  the  execution  of  the  commissions  or  decrees,  and 
if  necessary,  praying  an  enlargement  of  the  time  for  the 
completion  of  the  business. 

22d.  That  the  commissioner  or  commissioners  bring  in 
the  proceeds  which  have  been  collected  at  the  same  time 
with  their  returns  ;  and  if  the  whole  proceeds  have  not 
been  collected,  they  return  only  such  sums  as  may  be  re- 
quired to  answer  accruing  expenses. 

23d.  That  on  the  returns  of  commissions  or  decrees,  the 
commissioners  or  the  marshal  bring  in  the  vouchers. 

24th.  That  all  monies  brought  into  court  in  prize  causes, 
shall  be  forthwith  paid  into  bank,  pursuant  to  the 
of  the  general  rules  of  this  c()urt,  and  shall  only  be  dr^vn 
out  on  the  specific  orders  of  the  court  in  favor  of  the  per- 
sons respectively  having  right,  their  agents  or  representa- 
tives duly  authorized  to  receive  the  same. 

2^th.  That  each  commissioner,  for  discharging  the  du- 
ties'which  he  is  hereby  to  perform,  shall  be  entitled  to  the 
following  fees,  and  the  two  commissioners  resident  in  the 
city  of  New-York  shall  each  be  entitled  to  the  like  fees  ia 
each  case. 


J* 


J<5  APPENDIX. 

For  receiving  and  entering  a  notice  of  cap- 
ture, ...... 

For  attending  at  place  where  the  captured 
property  is, 

For  attending  to  the  safety  of  a  vessel.  For 
inspecting  captured  property,  putting  the 
same  under  seal,  receiving  and  examining 
all  letters,  documents  and  papers  relative 
to  the  same,  over  and  above  all  disburse- 
ttients  that  may  actually  be  paid,  for  mo- 
ving or  transferring  a  vessel  or  property 
to  a  place  of  safety,  and  under  all  actual 
disbursements  and  expenses,     . 

For  writing  an  afRdavit  with  respect  to  pa- 
pers, and  taking  an  account  thereof,  and 
for  marking  and  numbering  the  same. 

For  transferring  papers  and  information  to 
the  clerk  of  the  court,      .         .         .         <, 

For  drafting  and  copying  the  examination  of 
each  witness,  and  for  administering  the 
oath  to  the  same,  for  each  folio. 
For  any  special  services  not  herein  provided  for,  such 

compensation  as  the  court  under  all  the  circumstances  of 

the  case  shall  think  reasonable  and  just. 


No.  VII. 


FORM    OF    PRIZE    LIBEL. 


Disirm  Court  of  the  United  States  of  America,  for  (rt 
District  of  New-York. 

Jj^t  a  special  district  court  of  the  United  States  of  Ame- 
rica, for  the  district  of  New-York,  held  at  the  city  of  New- 
York,   in  the  i>aid  district,  on  the  second  day  of  January, 


t 


APPENDIX.  ■•  379 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
thirteen,  comes  Natlum  Sanford,  attorney  of  the  said  Uni- 
ted States,  for  the  district  of  New-York,  who  prosecutes 
in  this  respect  for  the  said  United  States,  and  also  for  the 
officers  and  crew  of  the  frigate  of  the  said  United  States, 
called  the  United  States,  hereinafter  mentioned,  and  being 
present  in  this  honorable  court  in  his  proper  person,  in  the 
name  and  on  behalf  of  the  said  United  States,  and  the  of- 
ficers and  crew  aforesaid,  alleges,  propounds  and  declares, 
as  follows,  that  is  to  say — 

First — That  open  and  public  war  did  at  all  the  times  men- 
tioned in  this  libel,  exist,  and  does  now  exist,  between 
the  United  States  of  America  and  their  territories,  and 
the  united  kingdom  of  Great  Britain  and  Ireland  and  the  ' 
dependencies  thereof. 
Secondly — That  Stephen  Decatur  is,  and  at  all  the  times 
,  mentioned  in  this  libel,  was  a  captain  in  the  navy  of  the 
said  United  States,  and  is,  and  at  all  the  times  hereia 
mentioned,  was  commander  of  the  said  frigate  of  the 
said  United  States,  called  the  United  States. 
Thirdly — That  the  said  Stephen  Decatur,  captain  and  com- 
mander of  the  said  frigate,  called  the  United  States,  as 
aforesaid,  did,  in  pursuance  of  the  said  state  of  war,  and 
instructions  from  the  President  of  the  said  United  States, 
on  the  twenty-fifth  day  of  October,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  twelve,  on  the-i 
high  seas,  to  wit,  on  the  Atlantic  ocean,  subdue,  seize 
and  take  as  prize  of  war,  a  certain  ship,  vessel  or  frigate, 
called  the  Macedonian,  with  her  tackle,  apparel  and  fur- 
niture, and  also  her  arms,  ammunition,  stores,  provisions 
and  appurtenances. 
Fourfl^ — That  the  said  ship,  vessel  or  frigate,  called  the 
Macedonian,  is,  and  at  all  the  times  hereinafter  mention- 
ed, was  a  public  vessel  of  war,  belonging  to  the  king  oi 
the  united  kingdom  of  Great  Britain  and  Ireland,  and 
vvas  employed  in  his  service. 


I    -Jfc 


J380  APPENDIX. 

Fifthly-r—Thzi  the  said  ship,  vessel  or  frigate,  called  the 
Macedonian,  having  been  so  seized  and  taken  as  afore- 
said, has  been  brought  into  the  port  of  New- York,  for 
legal  adjudication,  and  is  now  in  the  said  port,  within 
the  jurisdiction  of  this  honorable  Court. 

Sixthly — That  by  reason  of  the  premises,  the  said  ship, 
vessel  or  frigate,  called  the  Macedonian,  with  her  tackle, 
apparel  and  furniture,  and  also,  her  arms,  ammunition, 
stores,  provisions  and  appurtenances,  have  become  for- 
feited to  the  said  United  States,  and  to  the  officers  and 
crew  of  the  said  frigate  of  the  said  United  States^  called 
the  United  States,  and  ought  to  be  considered  to  their 
use. 

Lastly — .That  all  the  premises  are  and  were  true,  public,  and 
notorious,  of  which  true  proof  being  made,  the  said  attor- 
ney prays  the  usual  process  and  monition  of  this  honor- 
able court  in  this  behalf  to  be  made,  and  that  all  persons 
interested  in  the  said  ship,  vessel  or  frigate,  called  the 
Macedonian,  her  tackle,  apparel  and  furniture,  arms, 
ammunition,  stores  provisions  and  appurtenances,  may 
be  cited  in  general  and  special  to  answer  the  premises, 
and  all  due  proceedings  being  had,  that  the  said  ship, 
vessel  or  frigate,  called  the  Macedonian,  hei^tackle,  ap- 
parel and  furniture,  arms,  ammunition,  stores,  provisions 
and  appurtenances,  may  for  the  causes   aforesaid  and 

V  others  appearing,  be  condemned  by  the  definitive  sen- 
tence and  decree  of  this  honorable  court,  as  forfeited 
and  adjudged  to  be  lawful  prize  as  aforesaid,  &c. 

NATHAN  SANFORD, 
Attorney  of  the  United  States^  for  the 
district  of  New-Tork.^^ 


ALPHABETICAL  INDEX. 


A. 

Page 

Abandoumeut  by  the  captors .  52 

Acceptance  from  the  enemy  of  a  license  to  trade      .        .         .  159 

Allegiance,  permanent  or  temporary 101 

Allies,  property  of  engaged  in  trade  with  the  enemy          .         .  223 
Ally,  prizes  carried  into  the  ports  of  and  adjudicated  in  a  consular 

tribunal 260 

Ally,  prizes  carried  into  ports  of  and  condemned  in  courts  of  the 

captor's  country 261 

Attempts  to  evade  the  rule  prohibiting  trade  with  the  enemy       .  220 

Apparent  exceptions  to  the  rule 221 

Appendix 309 

Appeal,  disposition  of  the  property  in  case  of  .        .        .        .  281 

further  prool'on 285 

Articles  of  promiscuous  use  destined  to  a  port  of  naval  equipment  1 77 

Armstrong,  General,  his  letter  to  M.  do  Champagny         .        .  361 

Aurora,  case  of  the 168 

B. 

Berliriilre^ee,  rescript  relative  to 36q 

Blockaded  ports,  trade  to 190 

Blockade,  right  of  extended  to  total  prohibition  of  neutral  commerce  !b. 

definition  of     ,..,..,         ,  193 

notice  of Jb. 

49 


ALPHABETICAL    INDEX. 

Page 

Blockade,  penalty  for  breach  of 203 

of  Mart'nioHe  and  Gnadaloupe     .         .    •     .         .         .lb. 

documents  relating  to      .....        .  342 

Boats,  fishing GO 

Britain,  lavr  of  relating  to  recapture           .....  246 

constitution  of  prize  courts  in          .         .         .         .         .  272 

British  order  in  council,  relative  to  the  sale  of  vessels        .         .  62 

residents  in  Portugal 151 

orders  in  council 191 

law  prohibiting  ransoms  . 231 

regulations  as  to  distribution  of  prizes  to  flag  officers       .  294 

c. 

Capture  by  tenders  attached  to  ships  of  war          ....  36 

by  vessels  commissioned  against  one  power  of  effects  be* 

longing  to  another        ......  37 

of  merchant  vessel  iu  defending  herself    .        .        .        .lb. 

things  subject  to           .         .         .         .         .         .         .  41 

defined 52 

when  consummated ,         .  lb, 

in  neutral  territory  .         . 54 

of  ransom  bill  by  the  enemy 235 

Captures  in  violation  of  treaty  of  peace,  responsibility  for     .        .  300 

limitation  of  as  to  time  and  place       '.         .         .         .  301 

Captured  property,  title  to  iu  whom  vested          .         .         .        .  41 

Captors,  fr*-.ight  to  on  neutral  goods 70 

Carrying  despatches  of  the  enemy 186 

Cartels -jj^  58 

Character,  national  how  affected  by  the  flag  and  pass    .       ^ilB"  1^8 

national  of  Europeans  in  the  Kast    ....  149 

Citizenship  for  commercial  purposes 102 

Commissions  foreign,  laws  prohibiting  acceptance  of          .      •  .  .  _  45 

Commercial  iohubitaocy 102 


'        ALPHABETICAL    JNDEX. 

Page 

Common  law  as  to  tra<ling  with  the  enemy        .        .  213 

Conclusiveness  of  the  jiiilments  of  piiae  courts     ....  274 

Confiscation  of  contraband 181 

whether  extending  to  return  Toyage     .  183 
Consular  tribunal,  prizes  carried  into  the  ports  of  an  ally  and  adju- 
dicated in         2G0 

Contraband  of  war 175 

vehicfe  of  how  far  subject  to  confiscation         .         •  181 

Contracts  of  purcliase,  executory  and  contiui^ent  ....  80 

Conventional  law  of  nations  as  to  enemy  goods  in  neutral  vessels  74 

Convoying  ship,  recapture  of  merchant  vessels  under  convoy  of  by  249 

Co-operation  of  land  forces,  joint  capture  by     .         .         .         •  288 

Costs  and  damages 285 

Courts  of  the  captor's  country,  captures  adjudicated  in     .        .  258 

D. 

Declaration  of  war,  how  far  necessary          .        .        ,        .        .  13 

retroactive  effect  of 35 

Decrees,  French 191 

Definition  of  blockade      . 193 

Denmark,  laws  of  relative  to  recapture        .....  246 

Derelict 254 

Despatches  of  the  enemy,  carrying 186 

Deviation  from  the  route  prescribed  for  ransomed  vessel    .        .  233 

recaptiiie  on  account  of  234 

Distribution  of  prizes 286 

rules  of 291 

^Jt                      between  private  armed  vessels  joint  captors  '  203 

d|n^                  to  flag  oSicci's,  Britisu  regulations  as  to  294 

District  court,  prize  jurisdiction  oi' 273 

for  the  southern  district,  of  New- York,  rules  of  in 

prize  causes  . 369 

Documentary  evidence 281 


:       9 

W  ALPHABETICAL    INDEX. 

Page 

ilomicil,  for  commercial  purposes    •    .        .        .        .         .        .  102 

natural  and  acquired 103 

time  the  grand  ingredient  in  constituting         .         .         .lb. 

natural,  easily  reverts 105 

cases  of 106 

Donation  by  a  belligerent  to  a  neutral  at  sea      ,         .         ,        .  254 

E. 

Enemy  vessels  and  cargoes,  capture  of 62 

goods  in  neutral  vessels,  capture  of       ...         .  lb. 

^vhether  liable  to  confiscation      .  74 

flag  and  pass  of  how  affecting  national  character    .         .  158 

acceptance  from  of  a  license  to  trade  cause  of  confiscation  15S 

capture  of  ransom  bill  by 235 

recapture  from         ........  241 

,J|Enemy's  property,  where  liable  to  capture         ....  14 

freight  to  the  neutral  carrier  of        .        .        .79 

neutral  and  other  liens  upon          ...  80 

transfer  of  in  transitu 85 

country,  property  of  persons  domiciled  in    .        .        .  101 

bouse  of  trade  in 151 

right  suspended  and  revived         .         .         .     '   .         .  307 
England,  law  of  relative  to  seizures  before  the  commencement  of 

hostilities,  or  by  non-commissioned  captors       .        .  33 

^             maritime  law  of  as  to  trading  with  the  enemy       .         .  209 

Evidence,  documentary  and  depositions 281 

Exemption  from  capture  by  the  enemy     .        .        .        .        .  170 

Fishing  boats 6f 

Flag  and  pass,  Iiow  affecting  the  national  character  .        .        .  156 

Flag  officers,  distiibutionpi'  (uizes  to 294 

♦Iforcign  commissions,  juiceptance  of 4* 


»  ALPHABETICAL    INDEX. 

Page 

Form  of  prize  libel 378 

France,  law  of  as  to  seizures  before  the  commencement  of  hostili- 
ties, or  by -non-comraissioned  captors  ...  34 
law  of  as  to  accepting  foreign  commissions       ...  47 
law  of  relative  to  recaptnr's         .         .         .         .         .  244 
constitution  oi  prize  courts  in          .....  267 

Freight  to  captors  on  neutral  goods 70 

to  the  neutral  carrier  of  eneijdj's  property        ...  79 

salvage  upon        ........  250 

upon" cargo  to  recaptured  ve«sp!        .....  251 

French  regulations  rt^laliv;^  (o  transi*r  of  vessels         ...  C2 

ordinance  i tquiritig  certain  pioofs  of  transfer    ...  64 

derr^;es        .         .         . 191 

Further  proof .        ,  283 

G. 

Great  Britain,  law  of  relative  to  recaptures       ....  248 

constitution  of  prize  courts  iu        .        .        .        .  272 

H 

Hindostan,  British  residents  in 150 

Hiram,  case  of  the 165 

Hostilities,  public  assimilated  to  a  war 31 

suspension  of     .^        ......        .  299 

1. 

Inhabitancy,  commercial 102 

his^Uctious  to  armed  vessels .47 

President's  of  the  28th  August,  1812       ...  48 
exteudipg  the  law  of  uations  to  the  prejudice  of  neu- 
trals           50 

President's  to  private  aimea  vegseU       .        .  341 


ALPHABETICAL    INDLX. 

Page 

futercoursc  with  the  enemy,  unlawful 209 

Intention  of  returning,  how  far  available  in  cases  of  domicil        .        106 
Invocation  of  papers  and  depositions 284 

J. 

Joint  capture,  by  public  vessels 28? 

by  private  armed  vessels 288 

by  co-operation  of  land  forces     ....  lb. 

Joint  captors,  private  armed  vessels  distribution  of  prizes  between  293 

Julia,  case  of  the         .        .        .        .         •         .        .        .        •  153 

Jurisdiction,  captures  within  a  neutral 258 

of  a  neutral  state,  restitution  of  the  property  of  its  own 

subjects,  brought  within lb 

of  prize  courts  as  to  property  taken  on  land    .         .  278 

Jvs  postliminii •.  :      •  "^^^ 

L. 

Law  of  France  and  England,  as  to  seizures  before  the  commence- 
ment of  hostilities,  or  by  non-commissioned  captors         .       32 

„,    of  the  United  States  as  to  the  same 38 

prohibiting  acceptance  of  foreign  com- 
missions         45 

of  France,  prohibiting  the  same 47 

of  reciprocity 242 

of  France  as  to  recaptures i;244 

of  Spain     . 245 

of  Portugal     .         '. .         .         246 

of  Denmark  .         .  .         .         .       ' .      lb. 

uf  Sweden fjj  lb. 

of  Great  Britain lb. 

of  the  United  States 247 

Utter  from  Sir  W.  Scott  and  Sir  J.  Nicboll  to  Mr.  Jay        .        .    309 
General  Armstrong's,  to  ]>!•  de  Ghampagny    .        ,        -        361 


ALPHABETICAL    IMDEX, 

Page 

Libel,  prize  form  of     . 370 

Licenses  to  trade  with  the  enemy GO 

acceptance  ofcause  of  confiscation  lAQ 

License,  implied 221 

I'iens,  neutral  and  other  upon  enemy's  property        ...  80 

Limitation  of  captures  in  treaty  of  peace      .....     301 

Liverpool  Packet,  case  of         ...         .         ...         170 

Loss  of  ransomed  vessel       . 233 

M. 

Mackintosh,  Sir  James  his  decision  respecting  instructions  abridging 

the  rights  of  neutrals 50 

Maritime  law  of  England,  as  to  trading  with  the  enemy          .        .  209 

Marshall,  C.  J.  his  opinion  upon  a  question  of  domicil       .         .  117 

Martinique  and  Guadaloupe,  documents  relating  to  the  blockade  of  342 

Master,  seizure  under  an  agreement  with  the        ....  52 

Military  persons,  transportation  of 181 

Municipal  law,  property  engaged  in  violation  of  .         .         .         .  225 

N. 

Xational  character  of  Europeans  in  the  East     ....  14!) 

flag  and  pass  how  affecting  .         .         .  158 

^Natural  and  acquired  domicil 1.03 

domicil  easily  reverts      .         .         .         .         .         .  .105 

>i^aval  equipment,  port  of  articles  destined  to    .         .         .         .  177 

3ieutral  vessels  laden  with  enemy  goods 71 

enemy  goods  in  whether  liable  to  confiscation    .  74 

^^     carrier  of  enemy's  property,  freight  to     •.         .         .  .       7& 

and  other  liens  upon  enemy's  property         ...  80 

property  sometimes  liable  to  capture       .        .        .  .175 

■Tssel  carrying  enemy's  forces  liable  to  confiscation      .  184 

carrying  despatches  of  the  enemy  .        <•       .  .186 


ALPHABETICAL    INBEX. 

Page 
Neuti'al  commerce,  right  of  blockade  extended  to  total  prohibitioa 

of 190 

port,  trade  to-the  enemy's  coiintiy  through      .        .        .    220 
country,  trade  by  a  partiiersliip  ia        .         .         .         .  lb. 

territory,  capture  hi 54 

jurisdictioD,  captures  withia  hofv  adjudicated         .         .        258 
state,  restituticiii  of  the  property  ot  its  own  subjects,  brought 

within  its  jurisdiction      .         .         .         .         .         .lb. 

territory,  in  vvhiit  cases  property  continues  in  the  captor  ' 

when  brought  into 259 

ports,  extent  of  belligerent  rights  in         ...         .     260 
^  prizes  carried  into  and  coudemned  in  the  courts  of 

the  captor's  country lb. 

Neutralized  commodities,  trade  in 221 

Notice  of  blockade 'l93 

o. 

Order  in  council,  British  relative  to  transfer  of  vessels  ...  62 

Orders  in  council,  British 191 

Ordinance,  French  requiring  certaiu  proafs  of  transfer  ...  64 

Ordinances,  municipal  invalidity  of ....        *        .  63 

P. 

Parluership  iu  a  neutral  couQtl(7,  trade  by 22U 

Passport,  vessel  sailing  under ."iQ 

Payment  of  ransom,  how  enforced 236 

Peace,  treaty  of ^    ogg 

Penalty  for  resistance  to  visitation  and  search       .        .        .        .95 
of  confiscation  of  contraband,  whether  extending  to  return 

voyage .         133 

Penalty  for  breach  of  blockade 203 

Pirate,  recapturo  fr«m 23T 


ALPHABETICAL    INDEX. 

Pagi 

Pirates,  taking  by 54 

Pica  ftPd  proof 283 

Pre-emption,  ri;:lit  of  ....;...         .  177 

Presidfciit's  instructions  of  the  28th  August,  1812,       ...  48 

Private  armed  vessels,  security  given  by 42 

responsibility  of  owners  aud^^fficers  of   .  43 

President's  instructions  to            ...  341 

Prize  courts,  constitution  of 266 

conclusiveness  of  their  judgments       ....  274 

jurisdiction  of  as  to  property  taken  on  land    .         .  278 

proceedings        .         .         .         .         .         .         .         :         .  280 

libel,  form  of 378 

Prizes  carried  into  ports  of  an  ally  or  co-belligerent      .        .        .  261 

***  ^           neutral  ports        .         .         ;         .         .         .  lb, 

'     distribution  of  .         .         .         .         .         .         .        .         .  286 

Port  of  naval  equipment,  things  destined  to           ....  177 

of  an  ally,  prizes  carried  into    .         .         .         .         .         .  260 

Portalis,  M.  his  discourse  before  the  cauncil  of  prizes    .         .         -  267 

Portugal,  British  residents  in 151 

law  of  as  to  recaptures 246 

Postliminiiyjus 241 

Promiscuous  liw,  things  of 176 

Proof,  fuj  ther 283 

Property,  enemy's  these  liable  to  capture 14 

freight  to  the  neutral  carrier  of    .        .        .  79 ' 

neutral  and  other  liens  upon    ....  80 

transfer  of  in  transitu          .        .         .         .  85 

wrongfully  taken  before  a  declaratioa  of  war          .        .  39 

*^     captured  title  to  in  whom  vested       ....  41 

^     of  persons  domiciled  in  the  enemy's  country          .        .  101 

neutral,  sometimes  liable  to  capture  .        .        .        .  175 

engaged  in  'violation  of  municipal  law            .        .        .  225 

-^        neutral  salvage  for  when  payable        ....  239 

50 


ALPHABETICAL    INDEX. 

Page 

Public  hostilities  assimilated  to  a  war 31 

armed  vessels 41 

R. 

Ransoms 231 

British  law  prohibiting' lb. 

payment  pf  how  enforced      .        .        .         .        .        .  236 

Ransomed  vessel,  deviation  from  the  route  prescribed  for          .  233 

i                   loss  of lb. 

Ransom  bill,  capture  of  by  the  enemy 235 

Recapture  on  account  of  deviation  of  ransomed  vessel  .         .        .  234 

different  species  of 237 

from  a  pirate lb 

from  a  captor  commissioned  but  not  an  enemy          .  238 

from  an  enemy  .         .         .         .         .         .         -         •  241 

Recapture  law  of  France  as  to 244 

'  of  Spain       .         .• 244 

of  Portugal 246 

of  Denmark          .......  lb. 

of  Sweden lb. 

of  Great  Britain .lb. 

ofthe  United  States 247 

of  merchant  vesseMmder  convoy  by  convoying  ship      .  249 

Recaptured  vessel,  freight  upon  cargo  to           ....  251 

Reciprocity,  law  of    . '  312 

Reprisals         ..........  II 

Rescript  relative  to  the  Berlin  decree  * MO 

Rescue    .         .         .     ■ i^  251 

Responsibility  of  owners  and  officers  of  private  armed  vessels        .  43 

for  captures  in  violation  of  treaty  pf  peace  .        .  300 

Retroactive  effect  of  declaration  of  war 3.'* 

^ulc  as  to  the  effect  of  proofs  of  property         .         .         .         .      .    6C 
Rules  ofthe  District  Cpjurt  for  the  Southern  District  of  New-York, 

in  prize  causes .                .  369 


i« 


ALPHABETICAL    INDEX. 


s. 


Page 
Sale  of  vessels  must  be  absolute  and  unconditional   ...  64 

by  the  enemy  to  a  neutral  at  sea 248 

of  property  liable  to  perish,  or  subject  to  deterioration  .  284 
Salvage  for  neutral  property,  when  payable  upon  freight  .  .-^  250 
Scott,  Sir  W.  his  and  Sir  J.  NicboU's  letter  to  Mr.  Jay     .        .        309 

Security  given  by  private  armed  vessels 42 

Seizure  under  an  agreement  with  the  master     ....  62 

Ships  built  for  war ^80 

Slave  trade ,         .        227 

Suspension  of  hostilities 2Sl^ 

and  revival  of  enemy's  right 307 

Taking  by  pirates 5-i 

Tender  attached  to  ships  of  war,  capture  by      ...         .  36 

Testimony,  documentary  and  other 281 

Time,  the  grand  ingredient  in  constituting  domicil     .         .         .         lOJ 

Title  to  captured  property,  in  whom  vested  ....       41 

Titles  of  possession,  effects  of  peace  upon         ....         307 

Transfers  of  enemy's  property  in  transitu    .        .        .        .         .85 

Trade  to  b!ocka<led  ports         .         .         .         .         •        -        •        190 

witli  the  enemy,  property  taken  in  condemned  as  prize       .    219 

to  the  enemy's  country  tlirough  a  ^eutral  port       .        .        220 

by  a  partnership  in  a  neutral  country  .         .         .         .lb. 

in  neutralized  commodities     .       ^,         .         .         .         •        221 

with  the  enemy  by  an  ally  in  the  war         ....     22! J 

Trading  with  the  enemy,  maritime  law  of  England  as  to    .         .        209 

common  law  .         .         .         .         •     213 

law  of  the  United  States    ...        214 

Turkey,  national  character  of  Europeans  in  .        .    -    .        .149 

u. 

t^nited  States,  law  of  as  to  seizures  before  the  commencement  of 

hostilities,  or  by  non-commissioned  captors  38 


ALPHABETICAL    INDEX. 

Page 
tJoited  States,  law  of  prohibiting  the  acceptance  of  foreign  com- 
missions      45 

law  of  as  to  trading  with  the  eneoaj        .        .        .  209 

law  of  as  to  recaptures      .....  247 

V. 

Visitation  and  search  . 94 

penalty  for  resistance  to          .        .  95 

W. 

War,  declaration  of  how  farnecessary 13 

retroactive  effect  of  the  declaration  of       ...        •  35 

property  wrongfully  taken  before  a  declaration  of          .        .  39 

ships  built  for          ....-•••  1*0 


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